The Torah of Rav Yehosef Schwartz

Since this parsha, Re’eih, discusses the different species of kosher animals, a topic that will be included in this article, it provides an opportunity to learn about a very unique talmid chachom and tzadik, Rav Yehosef Schwartz.

The Torah of Rav Yehosef Schwartz

Question #1: Which minyan?

“In the minyan factory shtiebel that I often attend, it sometimes happens that most of my minyan has already heard the entire Chazoras Hashatz and answered Kedushah and Kaddish before we assemble to daven. Does this present us with any halachic questions?”

Question #2: Which chayah?

“A gnu is not listed in the Torah among the seven chayos, kosher wild animals, although it has split hooves and chews its cud. Why is it not listed?”

Question #3: Which borders?

“Where exactly are the borders of Eretz Yisroel?”

Question #4: Which question?

“What do the preceding three questions have to do with one another?”

Answer:

Rav Yehosef Schwartz, an outstanding talmid chochom and oveid Hashem, was also probably the greatest cartographer of Eretz Yisroel in history. We will study some background of this very unusual personality, and learn some of his Torah.

Rav Yehosef Schwartz was born in 1804 in a small Bavarian village where his antecedents had dwelled for many generations. A contemporary of Rav Samson Raphael Hirsch, he shared many of Rav Hirsch’s characteristics. Both men identified themselves as having a very specific, particular mission in serving Hashem, and pursued it despite living among people who neither shared nor necessarily understood their vision. Both maintained total humility, notwithstanding their considerable accomplishments, personal and communal. Both ended up becoming prolific and original authors on Torah subjects, in spite of the fact that neither had intended to do so early in life. Both married women whom they recognized would assist them in fulfilling their life’s goals, notwithstanding the difference in age between them. Both attended German universities with the specific goal of attaining knowledge they felt was necessary for them to fulfill their mission, yet neither one of them completed the requirements for the coveted doctoral degree. Both were involved extensively in providing chesed for their brethren, both journeyed widely to execute this goal, and both relocated to accomplish what they saw as their specific mission in fulfilling Hashem’s will. Both studied kabbalah, yet couched their knowledge in ways that their readers would not realize that they had drunk from those springs. Neither was always understood by the great halachic authorities of their generation, but both were highly respected gedolim, whose original contributions have withstood the test of time.

Early Life

Rav Yehosef Schwartz was born in Flos, a small Bavarian town, where, already as a youth, he distinguished himself for his hasmodah and sincerity. After studying in yeshiva, he attended the University of Wurzburg for several years, studying the subjects he felt he needed to augment his Torah knowledge: astronomy, mathematics, natural sciences and classical languages. He had already become an exceptional talmid chochom with extensive knowledge of Talmud Bavli and Yerushalmi, poskim, and midrashic literature. Rav Schwartz is known primarily for his encyclopedic and original work in mapping out Eretz Yisroel, but as we will soon see, this reflects only a small aspect of his greatness.

While quite young, he had already developed a profound love for Eretz Yisroel. At age 24, in 1829, while still living in Germany, he published his first map of the Holy Land. He revised this map twice before he left Europe for Eretz Yisroel.

Go East, My Son

When he was in his late 20’s, he had become convinced that his personal tikun was to move to Eretz Yisroel, no small endeavor at the time, which he proceeded to do despite strong family pressure. Because of various wars and other difficulties, the trip from Germany to Eretz Yisroel took him two years to complete. He finally arrived in Eretz Yisroel on the 13th of Nissan 5593 (1833).

He had originally planned to settle in Tzefas, presumably because of the kabbalistic orientation of the community, but upon arriving in Eretz Yisroel, he was invited to visit Yerushalayim. Once he arrived there, he decided to take up residence there, and he remained there for the rest of his life.

As was not uncommon among Ashkenazim who lived in Eretz Yisroel at this time, he adopted the local Sefardi dress and many of their customs, yet he maintained his very Ashkenazi family name. He never became a member of any of the various kehillos to the exclusion of the others, but considered himself part of all communities.

Upon after arriving in Eretz Yisroel, he taught himself two more languages, Ladino and Arabic, both of which would help him in his future research.

Personal Life

Shortly after moving to Yerushalayim, he married a twelve-year-old orphan. He was 29 years old at the time. They had eight children, four sons and four daughters; unfortunately six of their children perished during Rav Schwartz’s lifetime from the rampant diseases that plagued the country. Rav Schwartz merited taking only one daughter of his to the chupah; a younger daughter married the year after his passing. Although only two of his children survived him, a large number of his descendants are living today.

For the rest of his life, his livelihood was provided by his family, particularly by his older brother, Rav Chaim Schwartz, a rov in Europe who eventually even provided for Rav Yehosef’s widow after his passing. Rav Yehosef kept an active and lengthy correspondence with this brother, who often published the letters he received from Rav Yehosef in various periodicals in Europe. Rav Chaim Schwartz encouraged Rav Yehosef to write and publish his seforim, and arranged that many of Rav Yehosef’s works were translated into German and published in Europe, shortly after they were written.

Rav Yehosef, himself, was known as a great provider of tzedokah, notwithstanding that he and his family always lived in dire poverty and that he, personally, followed a very ascetic lifestyle. He fasted frequently and slept little. He and his wife were heavily involved in many chesed projects, including much hachnosas orchim and providing for widows and orphans.

His Mussar

Many of the observations shared by Rav Schwartz show us his perspective of “mah rabu ma’asechah Hashem.” For example, he notes the tremendous chesed that Hashem provides for us daily by having night very gradually turn to day, and having day so gradually darken to become night. If the day were to change suddenly, we would find the results blinding.

His Travels

Rav Schwartz devoted much of his life to traveling extensively throughout Eretz Yisroel, although we see from much of his correspondence that this travel involved a great deal of danger. We also know that, on at least one occasion, he traveled to England and the United States to attempt to raise funds for the yishuv in Yerushalayim.

His Research

Despite his fame for this area of research, it represents only a small part of Rav Schwartz’s published material. One of his areas of extensive study was to accurately determine the halachos of halachic daybreak, sunrise, sunset and nightfall, a topic to which he devoted an untold number of trips to check how long it took to get light and to get dark. He writes that both in Eretz Yisroel and in chutz la’aretz, he checked the physical features of sunrise over 4000 times in order to understand the topic well. He noted that calculating how much time it takes from dawn to sunrise and from sunset to nightfall depends on one’s location. He also demonstrates that one can prove, by observation, that the earth is round.

He was original in his approaches. In numerous places, he quotes great earlier halachic authorities such as the Ibn Ezra, the Radak, or the Gra, and then rallies proof to show why he feels that their interpretations of the halachic sources or their mathematical calculations were inaccurate.

His Published Works

For many years after Rav Schwartz arrived in Eretz Yisroel, he did not write or publish anything, despite his brother’s entreaties that he do so. Eventually, he produced numerous works, some published in Hebrew and printed in Eretz Yisroel, others printed in various European languages, mostly translated abridgments of his Hebrew works. Rav Hirsch quotes Rav Schwartz in his commentary to Devorim Chapter 11, Verse 29. Some of Rav Schwartz’s published material was used during his lifetime to produce educational materials for religious schools in Europe, particularly in Germany.

In his lifetime, Rav Schwartz published seforim on the following topics:

Tolodos Yosef, on astronomy and the halachos of zemanim. This work is full of charts and other demonstrative evidence.

Tevuos Ha’aretz, on the details of the land of Israel. This work places particular emphasis on its borders, and it is replete with many of his own original maps and drawings.

Ma’asei Ha’aretz, a history of the Jewish people in Eretz Yisroel from the time of the churbon to his time, in which he divided the history into various eras. He included highly detailed descriptions of the different rishonim who lived in Eretz Yisroel and the communities in which they lived. He includes all his sources.

He also wrote on linguistics, philology and phonemics, but always with a Torah perspective on how this research demonstrates the correctness of one halachic practice over another, or how we can thereby understand a passage of Gemara or Midrash.

In addition, he published a volume of his own responsa, called Rosh Hashoni, on a very eclectic list of topics. For example, he wrote a teshuvah discussing whether someone traveling through several dangerous areas, as was the situation in Eretz Yisroel in his day, bentches gomel only upon arriving at his final destination, or whether each day he should bentch gomel upon safely arriving for the night at a different community (#58). He explains why we find no dispute in Chazal regarding when the day begins, although we find much dispute when the day ends (#19). He asks if someone who says his prayers in a vernacular may say the name of Hashem in Hebrew while doing so (#35). In another teshuvah, he discusses whether the Rambam changed his mind about the fact that Judaism has 13 ikorei emunah (#57). The basis of this question is that although the Rambam devotes much discussion to this topic in his commentary on the Mishnah, which he wrote in his youth, he makes no mention of this basic topic in the Mishneh Torah.

Some of Rav Schwartz’s responsa answer contemporary questions. For example, he was asked the following shailah about a shul that has several daily Shacharis minyanim: The people who daven at the later minyan have already arrived in shul while the earlier minyan is still davening and thus, they have already answered Borchu, and answered Kedushah. Do they still have a minyan to daven the regular Shacharis? Is it considered that they have already fulfilled the requirement of tefillah betzibur by listening to Chazaras Hashatz and therefore cannot repeat Shemoneh Esrei for that davening (#55)?

Mussaf Before Shacharis?

Here is another, even more contemporary, question that Rav Schwartz addresses. Someone arrives late for shul on Shabbos, and the tzibur is ready to daven Mussaf. Should he recite Mussaf together with the tzibur, so that he has the merit of tefillah betzibur, and then daven Shacharis, or should he daven in the proper order, Shacharis and then Mussaf (#30)? He concludes that someone in this scenario should join the minyan for Mussaf and then daven Shacharis.

Several of the questions he talks about are discussed extensively by other authorities of his time. For example, he discusses the situation of a gentile in the process of conversion who has undergone bris milah, but did not yet have the opportunity to immerse in a mikvah to complete his geirus. Is he still required to break Shabbos?

An interesting question Rav Schwartz discusses that I have found in no other responsa work is as follows: There are two people; one is a perfect tzadik, whereas the other was born with very bad traits and is striving to improve. Which of the two will be rewarded in greater measure by Hashem? (#34)

When Rav Schwartz passed on, he left behind, in addition to his published works, extensive notes, notebooks, and even several works ready for publication.

The Four Questions

At this point, we can now address our opening four questions:

Question #1: Which Minyan?

“In the minyan factory shtiebel that I often attend, it sometimes happens that most of my minyan has already heard the entire Chazoras Hashatz and answered Kedushah and Kaddish before we assemble to daven. Does this present us with any halachic questions?”

Question #2: Which Chayah?

“A gnu is not listed in the Torah among the seven chayos, kosher wild animals, yet it has split hooves and chews its cud. Why is it not listed?”

Question #3: Which Borders?

“Where exactly are the borders of Eretz Yisroel?”

Question #4: Which Question?

“What do the preceding three questions have to do with one another?”

As I am sure you surmised, the first three questions are discussed in Rav Schwartz’s writings. He devotes one of his responsa (#55) to the first question. Apparently, already in his day Yerushalayim had a shtiebel in which minyanim took place in different parts of a large beis medrash. Frequently, a group of people would have heard the entire repetition of Shemoneh Esrei before a section of the beis medrash was available for them to conduct their minyan. Can one still conduct Chazoras Hashatz, when every member of the assembled group has already heard a repetition of Shemoneh Esrei, albeit without having yet davened themselves? Rav Schwartz concludes that if the minyan assembled does not have six people who did not yet hear the repetition of Shemoneh Esrei, they cannot have a Chazoras Hashatz for their minyan. If you are faced with the same question, I suggest consulting your rav or poseik.

What’s Gnu?

The gnu, also known as a wildebeest, is a variety of antelope native to Africa. Since the gnu both chews its cud (ruminates) and possesses split hooves, seeming to be a kosher animal, Rav Schwartz was asked as follows: The Torah lists only ten varieties of kosher animals: three beheimos and seven chayos. Which one is the gnu?

Rav Schwartz answers that the gnu is the yachmur. He writes that he has correctly identified the nine other kosher animal species mentioned by the Torah, and writes which species they are. The only one left unidentified is the yachmor, which, by process of elimination, must be the gnu.

(Personally, I would suggest a different approach to answering this question, since there are, according to my information, 91 species of antelope known to mankind, all of which ruminate and have split hooves. One is probably forced to say that some of the terms of the Torah include far more than what we would consider to be one species.)

Responsa from Early Nineteenth-Century America

Rav Schwartz wrote several teshuvos based on questions he was asked during his trip to England and the United States. One question was whether a citrus fruit native to the West Indies qualified as an esrog. He first writes that there was no question that this fruit had never been grafted onto another species, since such fruits grow in the wild in an area where the local native population has no interest or knowledge about grafting, nor do they have related species on which to graft it. The remaining question was whether this fruit, which looked very different from any esrog he had ever seen, qualified as an esrog. He ruled that it did qualify, and reports that he used it to fulfill the mitzvah during his stay in North America.

The End

Based on our contemporary understanding of the report of Rav Schwartz’s physician, he contracted scarlet fever, which developed into meningitis and took his life when he was 61 years old. Thus ended the life of an intense oveid Hashem, who devoted himself to becoming a master of areas of Torah that had been completely untrodden before him. Yehi zichro boruch.

 

 

Praying for a Rainy Day when Traveling to or from Eretz Yisroel in November

Whereas in chutz la’aretz ve’sein tal umatar (the prayer for rain added to the beracha of Boreich Aleinu in the weekday shemoneh esrei) is not recited until the evening of December Fourth (this year; the exact date varies), people in Eretz Yisroel began reciting this prayer on the Seventh of MarCheshvan. This difference in practice leads to many interesting shaylos. Here are some examples:

Question #1:

Yankel, who lives in New York, is in aveilus, l”a, for his father, and tries to lead services at every opportunity. He will be visiting Eretz Yisroel during the month of November. Does he recite the prayer according to the Eretz Yisroel practice while there? Which version does he recite in his quiet shemoneh esrei? Perhaps he should not even lead services while he is there?

Question #2:

Does someone from chutz la’aretz who is currently attending yeshiva or seminary in Eretz Yisroel recite ve’sein tal umatar according to the custom of Eretz Yisroel or according to the chutz la’aretz practice?

Question #3:

Reuven lives in Eretz Yisroel, but is in chutz la’aretz on the Seventh of MarCheshvan. Does he begin reciting ve’sein tal umatar while in chutz la’aretz, does he wait until he returns to Eretz Yisroel, or does he follow the practice of those who live in chutz la’aretz?

In order to explain the halachic issues involved in answering these shaylos, we must first explain why we begin requesting rain in Eretz Yisroel on a date different from that in chutz la’aretz.

The Gemara (Taanis 10a) concludes that in Eretz Yisroel, one begins reciting ve’sein tal umatar on the Seventh of MarCheshvan, whereas in Bavel one begins reciting it on the sixtieth day after the autumnal equinox. (The Gemara’s method for calculating the autumnal equinox is not based on the solar year, but on a different calculation. The reason for this is beyond the scope of this article.) Someone who recites ve’sein tal umatar during the summer months in Eretz Yisroel must repeat the shemoneh esrei, since this request in the summer is inappropriate (Taanis 3b; Shulchan Aruch Orach Chayim 117:3).

WHY ARE THERE TWO DIFFERENT “RAIN DATES”?

Since Eretz Yisroel requires rain earlier than Bavel, Chazal instituted that the Jews in Eretz Yisroel begin requesting rain shortly after Sukkos. In Bavel, where it was better if it began raining later, reciting ve’sein tal umatar was delayed until later. This practice is followed in all of chutz la’aretz, even in places where rain is not seasonal, or where rain is needed earlier — although the precise reason why all of chutz la’aretz follows the practice of Bavel is uncertain (see Rashi and Rosh to Taanis 10a; Shu”t Rosh 4:10; Tur and Shulchan Aruch Orach Chayim 117, and my article on reciting ve’sein tal umatar in the southern hemisphere).

LOCAL CONDITIONS

If a certain city needs rain at a different time of the year, can they, or should they recite ve’sein tal umatar then? The Gemara (Taanis 14b) raises this question and cites the following story:

“The people of the city of Nineveh (in contemporary Iraq) sent the following shaylah to Rebbe: In our city, we need rain even in the middle of the summer. Should we be treated like individuals, and request rain in the beracha of Shma Koleinu, or like a community and recite ve’sein tal umatar during the beracha of Boreich Aleinu? Rebbe responded that they are considered individuals and should request rain during the beracha of Shma Koleinu.”

This means that an individual or a city that needs rain during a different part of the year should recite ve’sein tal umatar during the beracha of Shma Koleinu, but not as part of Boreich Aleinu.

NATIONAL CONDITIONS

Is a country different from a city? In other words, if an entire country or a large region requires rain at a different time of the year, should its residents recite ve’sein tal umatar during the beracha of Boreich Aleinu? The Rosh raises this question and contends, at least in theory, that a country should recite ve’sein tal umatar in Boreich Aleinu. In his opinion, most of North America and Europe should recite ve’sein tal umatar during the summer months. Although we do not follow this approach, someone who recites ve’sein tal umatar at a time when his country requires rain should not repeat the Shemoneh esrei, but should rely retroactively on the opinion of the Rosh (Shulchan Aruch and Rama 117:2). Similarly, someone in chutz la’aretz who recited ve’sein tal umatar as part of Boreich Aleinu in error after the Seventh of MarCheshvan should not repeat Shemoneh esrei afterwards, unless he lives in a country where rain is not necessary at this time (Birkei Yosef 117:3; cf. Shu”t Ohalei Yaakov #87 of the Maharikash,  who disagrees.).

With this introduction, we can now begin to discuss the questions at hand. What should someone do if he lives in Eretz Yisroel but is in chutz la’aretz, or vice versa, during the weeks when there is a difference in practice between the two places? As one can imagine, much halachic literature discusses this shaylah, although I am surprised to report that I found no discussion concerning this question dating back to the Rishonim. I found three early opinions, which I quote in chronological order:

Opinion #1

The earliest opinion I found, that of the Maharikash (Shu”t Ohalei Yaakov #87) and the Radbaz (Shu”t #2055), discusses specifically an Eretz Yisroel resident who left his wife and children behind while traveling to chutz la’aretz. (In earlier generations, it was common that emissaries from the Eretz Yisroel communities traveled to chutz la’aretz for long periods of time to solicit funds.) These poskim ruled that if the traveler is leaving his family behind in Eretz Yisroel, he should begin reciting ve’sein tal umatar on the Seventh of MarCheshvan, following the practice of Eretz Yisroel, regardless of whether he himself was then in Eretz Yisroel or in chutz la’aretz. However, if he is single, or alternatively, if he is traveling with his family, then when he begins reciting ve’sein tal umatar depends on whether he will be gone for the entire rainy season. If he leaves Eretz Yisroel before the Seventh of MarCheshvan and intends to be gone until Pesach or later, he recites ve’sein tal umatar according to the practice of chutz la’aretz. If he intends to return before Pesach, he recites ve’sein tal umatar beginning on the Seventh of MarCheshvan, even though he is in chutz la’aretz.

The key question here is, what is the criterion for determining when someone recites ve’sein tal umatar? These poskim contend that it depends on his personal need. If his immediate family is in Eretz Yisroel, it is considered that his personal need requires rain already on the Seventh of MarCheshvan. Therefore, he begins reciting ve’sein tal umatar on that date, even should he himself be in chutz la’aretz (Shu”t Igros Moshe, Orach Chayim 2:102).

Opinion #2

The Pri Chodosh (Orach Chayim 117) quotes the previous opinion (of the Maharikash and the Radbaz) and disputes their conclusion, contending that only one factor determines when the traveler begins reciting ve’sein tal umatar – how long he plans to stay abroad. If he left Eretz Yisroel intending to be away for at least a year, he should consider himself a resident of chutz la’aretz (for this purpose) and begin reciting ve’sein tal umatar in December. If he intends to be away for less than a year, he should begin reciting ve’sein tal umatar on the Seventh of MarCheshvan. Furthermore, the Pri Chodosh states that whether one leaves one’s immediate family behind or not does not affect this halacha.

These two approaches disagree fundamentally regarding what determines when an individual recites ve’sein tal umatar? According to Opinion #1 (the Maharikash and the Radbaz), the main criterion is whether one has a personal need for rain as early as the Seventh of MarCheshvan. According to Opinion #2 (the Pri Chodosh), the issue is whether one is considered a resident of Eretz Yisroel or of chutz la’aretz.

According to this analysis of Opinion #2, a resident of chutz la’aretz who intends to spend a year in Eretz Yisroel begins reciting ve’sein tal umatar on the Seventh of MarCheshvan, whereas, if he intends to stay less than a year, he follows the practice of chutz la’aretz (Pri Megadim; Mishnah Berurah; cf. however Halichos Shelomoh, Volume 1 8:28 pg. 107). However, according to Opinion #1, he would being reciting ve’sein tal umatar on the Seventh of MarCheshvan if he or his family intend to spend any time during the rainy season in Eretz Yisroel.

Opinion #3

The Birkei Yosef quotes the two above-mentioned opinions and also other early poskim who follow a third approach, that the determining factor is where you are on the Seventh of MarCheshvan. (See also Shu”t Dvar Shmuel #323.) This approach implies that someone who is in Eretz Yisroel on the Seventh of MarCheshvan should begin praying for rain, even though he intends to return to chutz la’aretz shortly, and that someone who is in chutz la’aretz on that date should not, even though he left his family in Eretz Yisroel.

Dvar Shmuel and Birkei Yosef explain that someone needs rain where he is, and it is not dependent on his residence. Birkei Yosef points out that if there is a severe drought where he is located, it does not make any difference if he lives elsewhere; he will be a casualty of the lack of water. This was certainly true in earlier generations, when water supply was dependent on local wells. Even today, when water is supplied via piping from large reservoirs, this opinion would still rule that the halacha is determined by one’s current location, and not one’s permanent residence.

Opinion #3 (the Birkei Yosef’s approach) is fairly similar to that of Opinion #1 (the Maharikash and the Radbaz), in that both approaches see the determining factor to be temporary need and not permanent residency. However, these two opinions dispute several details, including what is the ruling of someone in chutz la’aretz whose family remains in Eretz Yisroel. According to Opinion #1, this person begins ve’sein tal umatar on the Seventh of MarCheshvan, whereas Opinion #3 contends that he begins only when the other bnei chutz la’aretz do.

Why does Opinion #3 disregard his family being in Eretz Yisroel as a factor, whereas Opinion #1 is concerned with this fact? Birkei Yosef explains that praying for rain for one’s family when one is in chutz la’aretz is praying for an individual need, which one does in Shma Koleinu, not in Boreich Aleinu, since the rest of the community there has no need for rain. Opinion #1 presumably holds that praying for Eretz Yisroel when I am in chutz la’aretz is not considered praying for an individual, even though my reason to pray for rain in Eretz Yisroel is personal.

After analyzing these three conflicting opinions, how do we rule? Although the later poskim, such as the Mishnah Berurah, refer to these earlier sources, it is unclear how they conclude halachically. (See Shu”t Tzitz Eliezer 6:38, which contains a careful analysis of the words of the Mishnah Berurah on this subject.) Thus, an individual should ask his Rav what to do in each case.

TRAVELING AND RETURNING

What does one do if he travels and returns within these days? Assuming that he began to recite ve’sein tal umatar on the Seventh of MarCheshvan because he was in Eretz Yisroel (and he followed those opinions that rule this way), does he now stop reciting it upon his return to chutz la’aretz?

This question is raised by the Birkei Yosef (117:6), who rules that he continues reciting ve’sein tal umatar when he returns to chutz la’aretz.

What does one do if he is reciting ve’sein tal umatar, and the community is not, or vice versa — and he would like to lead the services? Birkei Yosef rules that he should not lead the communal services; however, if he forgot and did so, he should follow his own version in the quiet Shemoneh esrei and the community’s version in the repetition (Birkei Yosef 117:8). However, Rav Shlomoh Zalman Auerbach permitted him to lead the services, following the community’s practice in his public prayer and his own in his private one (Halichos Shelomoh 5:21; note that according to Igros Moshe, Orach Chayim 2:23, 29; 4:33 he should not lead the services.).

Let us now examine some of the shaylos we raised above:

Question #1:

Yankel, who lives in New York, would like to lead services when visiting Eretz Yisroel during the month of November.

According to all of the opinions involved, when davening privately Yankel should not recite ve’sein tal umatar until it is recited in chutz la’aretz, since he does not live in Eretz Yisroel, does not have immediate family living there, and was not there on the Seventh of MarCheshvan. As explained above, according to most opinions, he should not lead the services, since he is not reciting ve’sein tal umatar and the congregation is, whereas according to Rav Shlomoh Zalman Auerbach, he may lead the services. According to Birkei Yosef (Opinion #3 above), if he is in Eretz Yisroel on the Seventh of MarCheshvan, he should begin to recite ve’sein tal umatar then, since he now has a need for rain; he should continue to recite this prayer even when he returns to chutz la’aretz. However, in this case, when returning to chutz la’aretz, he should not lead services, according to most opinions, since he is reciting ve’sein tal umatar and they are not. If he forgot and led the services, he should recite ve’sein tal umatar in the quiet Shemoneh esrei but not in the repetition.

According to the Pri Chodosh (Opinion #2 above), if he is in Eretz Yisroel on the Seventh of MarCheshvan, he should not recite ve’sein tal umatar, since he lives in chutz la’aretz. Following this approach, he should not lead services when in Eretz Yisroel, but he may resume when he returns to chutz la’aretz.

Question #2:

Does someone attending Yeshiva or seminary in Eretz Yisroel, recite ve’sein tal umatar according to the custom of Eretz Yisroel or according to the chutz la’aretz practice?

The answer to this question will depend upon which of the above-quoted authorities one follows. According to Opinion #1 (the Maharikash, the Radbaz) and Opinion #3 (the Birkei Yosef), they should follow the practice of Eretz Yisroel, since they need the rain, while in Eretz Yisroel, even though they are not permanent Israeli residents. According to Opinion #2 (the Pri Chodosh), if they are staying for less than a year, they follow the practice of chutz la’aretz, whereas if they are staying longer, they should begin reciting it from the Seventh of MarCheshvan. Several people have told me that Rav Elyashiv ruled that they should recite ve’sein tal umatar while they are in Eretz Yisroel, unless they intend to return before the end of the rainy season.

Question #3:

Reuven lives in Eretz Yisroel, but is in chutz la’aretz on the Seventh of MarCheshvan. Does he begin reciting ve’sein tal umatar while in chutz la’aretz, does he wait until he returns to Eretz Yisroel, or does he follow the practice of those who live in chutz la’aretz?

According to Opinions # 1 and #2, he should follow the practice of those living in Eretz Yisroel, but for different reasons. According to Opinion #1, the reason is because he knows that he will return to Eretz Yisroel during the rainy season and therefore follows the practice there. According to Opinion #2, since he left Eretz Yisroel for less than a year he is considered an Eretz Yisroel resident.

Although it would seem that the Birkei Yosef (Opinion #3) would hold that he should not recite ve’sein tal umatar until the bnei chutz la’aretz do, it is not absolutely clear that he would disagree with the other poskim in this case. One could explain that he ruled only that one follows the bnei chutz la’aretz if he is there for an extended trip, but not if he is there for only a few weeks that happen to coincide with the Seventh of MarCheshvan. For this reason, when someone recently asked me this shaylah, I ruled that he should follow the practice of those dwelling in Eretz Yisroel. Subsequently, I found this exact shaylah in Shu”t Tzitz Eliezer (6:38), and was very happy to find that he ruled the same way I had. (However, Halichos Shelomoh 8:19 rules that he should recite ve’sein tal umatar in Shma Koleinu and not in Boreich Aleinu.)

CONCLUSION

Rashi (Breishis 2:5) points out that until Adam HaRishon appeared, there was no rain in the world. Rain fell and grasses sprouted only after Adam was created, understood that rain was necessary for the world and prayed to Hashem for rain.  Whenever we pray for rain, we must remember that the essence of prayer is drawing ourselves closer to Hashem.

 

Aliyah Laregel

This website contains many articles on a wide range of Yom Tov related topics that can be found under the headings Sukkah, Esrog, Yom Tov, Hallel, Chol Hamoed, Eruv Tavshillin. The enclosed article discusses a different aspect of Yom Tov observance, that of…

Aliyah Laregel

Question #1: Yizkor on Simchas Torah?

“Is there a reason why Yizkor is recited in Eretz Yisroel in the middle of the Simchas Torah davening?”

Question #2: No Aliyah Laregel

“Someone once told me that when the Beis Hamikdash is rebuilt, the mitzvah of Aliyah Laregel will be optional. How can that be?”

Question #3: Women and Yaaleh Veyavo

“If a woman forgot Yaaleh Veyavo in bensching of Yom Tov, does she repeat the bensching?”

Introduction:

Although we cannot observe the beautiful mitzvah of Aliyah Laregel until the Beis Hamikdash is rebuilt, many halachic observances and customs result from the laws associated with this mitzvah. The questions above reflect some of those practices.

The mitzvah of Aliyah Laregel

The mitzvah of Aliyah Laregel is mentioned several places in the Torah. In parshas Ki Sissa (Shemos 34:23), the Torah states: Shalosh pe’amim bashanah yeira’eh kol zechurcha es penei Ha’adon Hashem, Elokei Yisroel, “Three times a year shall all your males appear in the Presence of the Lord, Hashem, the G-d of Israel,” and a similar posuk appears in parshas Mishpatim (Shemos 23:17). In parshas Re’eih (Devorim 16:16), the Torah specifies that the three times are Pesach, Shavuos, and Sukkos. In this last place, the Torah concludes with the following statement: “Three times a year, all your males shall appear before Hashem, your G-d, in the place that He will choose, and you should not appear before Hashem empty-handed. Each man should bring with him according to the bounty that Hashem your G-d has provided you.”

This last verse teaches that the mitzvah is not only to ascend to Yerushalayim and to the Har Habayis (the “Temple Mount”), but also to bring korbanos when we come. It also states that a wealthier individual is obligated to spend more on his korbanos than a pauper (Mishnah, Chagigah 8b).

Three mitzvos

When the Tosefta (Chagigah 1:5) and the Gemara (Chagigah 6b) discuss the details of Aliyah Laregel, they refer to it as three mitzvos: “The Jewish people were commanded three mitzvos when they were oleh regel,” that is, traveling to the Beis Hamikdash grounds on Yom Tov required three specific mitzvah actions:

  1. From the words of the above-quoted posuk, “You should not appear before Hashem emptyhanded,” we derive that one is required to offer a korban olah when we appear in the Beis Hamikdash, called an olas re’iyah. This korban is completely consumed on the mizbeiach, except for its hide, which is given to the kohanim as one of the gifts that the Torah provides.
  2. The mitzvah of offering special korbanos shelamim in honor of the festival, called Chagigah or shalmei chagigah. Some of the meat of this korban goes to the kohanim, but most of it goes to the owners who serve it as part of their Yom Tov meals while in Yerushalayim. Any tahor Jewish person is permitted to eat from this korban.
  3. The mitzvah of simcha, which includes offering korbanos and eating their meat on each day of the festival, including chol hamoed. Since meat of korbanos may be eaten only in Yerushalayim, this means that, at the time of the Beis Hamikdash, the entire Jewish people spent the whole Yom Tov, including all the days of chol hamoed, in Yerushalayim.

One fulfills this latter mitzvah with any animal korban from which one is permitted to eat, including other korbanos that one must offer anyway (Mishnah, Chagigah 7b). In other words, one may wait to bring his other required korbanos, such as firstborn animals, maaser beheimah, donated shelamim offerings, and chata’os until Yom Tov, and offer them then, while one is in Yerushalayim anyway. When he offers them on Yom Tov, he may fulfill the requirement of consuming shalmei simcha with the meat of these korbanos. (In the case of chata’os and similar korbanos, this approach can be used only by kohanim, since no one else is permitted to consume them.)

Rules of Har Habayis

One is required to be completely tahor when ascending the Har Habayis and to do so with complete awe of the sanctity of the place, and to act appropriately. Among the specific laws that apply on Har Habayis is a prohibition against wearing shoes and of carrying one’s wallet or money belt.

Exempt from Aliyah Laregel

Notwithstanding the words of the Torah that all the males should ascend the Har Habayis three times a year, Chazal derive that there is a long list of men who are exempt from fulfilling the mitzvos of re’iyah. This list includes:

  1. Difficulty in walking

Anyone who has difficulty walking is exempt from the mitzvah of Aliyah Laregel. This includes the elderly, the ill, someone with a lameness or injury in his legs, and even those who are unused to walking without shoes, since one is prohibited from wearing shoes on the Har Habayis (Chagigah 4a). Someone who can walk there only because he uses a prosthesis is also exempt from the mitzvah (Chagigah 3a; 4a). Similarly, someone who has discomfort in one leg, even if he has no discomfort in the other leg and can still walk, is also exempt (Chagigah 3a).

  1. Vision impaired

Anyone whose vision is impaired is exempt from the mitzvah. This includes someone who can see out of only one eye (Chagigah 4b).

  1. Hearing impaired

Someone who cannot hear, but can speak, or someone who can speak but not hear is exempt from the mitzvah of re’iyah, although they are obligated in simcha and indeed all other mitzvos of the Torah (Chagigah 2b). Also, someone who does not hear in one ear is exempt from re’iyah (Chagigah 3a).

All three of these categories of people who are exempt from the mitzvah of Aliyah Laregel and of offering the olas re’iyah and the shalmei chagigah are still obligated in the third mitzvah mentioned above, of partaking in korbanos simcha (Rambam, Hilchos Chagigah 2:4, based on Gemara Chagigah 4a). This is, of course, assuming that they went to Yerushalayim for Yom Tov, because one may eat these korbanos only there.

  1. Tamei

People who are tamei are exempt from fulfilling the mitzvah of Aliyah Laregel (Gemara Chagigah 4b; Tosefta Chagigah 1:1). Someone who is tamei is required to make himself tahor in order to fulfill the mitzvah of Aliyah Laregel. However, if he did not purify himself or was unable to do so, he is now exempt from the mitzvah, since as long as he is tamei he may not enter the Beis Hamikdash grounds. Indeed, someone who is tamei cannot fulfill the mitzvah of Aliyah Laregel, since he is not allowed to enter the Beis Hamikdash grounds (Rambam, Hilchos Chagigah 2:1).

There is a major difference between the various categories of exemptions from Aliyah Laregel. People excused from the mitzvah for medical reasons may perform the mitzvah, and if they do so, they will be rewarded as einam metzuvim ve’osim, those who perform a mitzvah that they are not obligated to perform. However, someone who is tamei is forbidden to participate in Aliyah Laregel, since doing so would cause him to violate the sanctity of the Beis Hamikdash. He should try to make himself tahor as soon as possible.

  1. Uncircumcised

There are specific situations in which someone is not obligated to have a bris milah performed, because of the danger that is involved. Although such a person is exempt from the mitzvah of bris milah, he is still not circumcised, and, as such, he is exempt from several of the Torah’s mitzvos, including the mitzvah of Aliyah Laregel. Similar to the person who is tamei, this individual is forbidden to observe the mitzvah.

Children

Although a child is not required to observe any mitzvah, Chazal required the father to see to it that he observe most mitzvos, in order to acquaint himself with keeping them. In this context, we find a dispute between Beis Shammai and Beis Hillel. Both schools hold that a father is required to have his minor son accompany him on the mitzvah of entering the Beis Hamikdash on Yom Tov. The question is: From what age is the father obligated to do so? According to Beis Shammai, the father is obligated to do so from when the child is old enough to ride his father’s shoulders, when the father walks from Yerushalayim to the Har Habayis.

We should be aware that the responsibility of a father to train his child to perform a mitzvah is only when the child will be obligated to fulfill that mitzvah when he becomes an adult. Thus, regarding the mitzvah of Aliyah Laregel, should the child fit any of categories 1-3 above that exempt an adult from this mitzvah, the father is not obligated to bring the child with him when he is oleh regel (Rambam, Hilchos Chagigah 2:3).

Smelly professions

There are certain professions that leave their artisans with a malodorous odor. Tanners and copper smelters, for example, are surrounded by substances whose ill fragrance sometimes permeates their clothing and hair. Are they obligated in the mitzvah of Aliyah Laregel, or do we say that since their attendance might adversely affect other people required to observe the mitzvah that they are exempt? This question is discussed by the Gemara (Chagigah 4a). The Rambam (Hilchos Chagigah 2:2) concludes that they are required to clean themselves and their clothes fully and fulfill the mitzvah of Aliyah Laregel.

Yizkor and Aliyah Laregel

I mentioned previously the posuk from parshas Re’eih (Devorim 16:16), in which the Torah specifies that each person is obligated to donate according to the bounty that Hashem has provided him. At this point, I want to address one of our opening questions:

“Is there a reason why Yizkor is recited in Eretz Yisroel in the middle of the Simchas Torah davening?”

To answer this question, we need to explore the history of this prayer. Yizkor is a custom that began among Ashkenazim in chutz la’aretz and is recited four times a year: on Yom Kippur, the eighth day of Pesach, the second day of Shavuos and on Shemini Atzeres. Why specifically on these four days?

On all of these days, there was a custom to make donations to tzedakah, and, at one point, there became established an idea of reciting a prayer that the tzedakah donated should serve for the benefit of one’s departed parents and other relatives. On Yom Kippur, it is obvious why special donations were made to tzedakah, but why specifically on the three days of Yom Tov mentioned above, as opposed to the other days of Yom Tov?

The answer is that in chutz la’aretz, the reading for these three yomim tovim — the eighth day of Pesach, the second day of Shavuos and Shemini Atzeres — is in parshas Re’eih, and the last posuk of the reading states: “Each man should bring with him according to the bounty that Hashem your G-d has provided you.” Although the literal meaning of the posuk refers to the amount one should spend on the korban olas re’iyah, it certainly can be understood to include gifts for tzedakah, and indeed that became an accepted practice. The people made donations to tzedakah, but decided to have them as an iluy neshamah, an elevation for the souls of their departed relatives. (By the way, in some German communities, there was no minhag of Yizkor and instead, they observed a different practice on those days, called matanas yad.)

When the Ashkenazim began returning to Eretz Yisroel in the nineteenth century, they realized that in Eretz Yisroel, there is no eighth day of Pesach or second day of Shavuos, and the day that is called Shemini Atzeres in chutz la’aretz is called and observed as Simchas Torah, when we read parshas Vezos Haberacha and the beginning of Bereishis. Thus, parshas Re’eih is never read on Yom Tov.

Because people did not want to lose this beautiful minhag of reciting Yizkor, they continued to observe the practice on the day of Yom Tov closest to those days, that is, on the seventh day of Pesach, Shavuos, and on Simchas Torah.

Beloved servants

We have discussed some of the laws of the mitzvah of Aliyah Laregel, a topic that we will continue to discuss in a future article, when we will iy”H answer the remaining of our opening questions. Contemplating this special mitzvah of Aliyah Laregel should give every one of us chizuk. Consider that Hashem Yisborach commanded us to come to the Beis Hamikdash “in order to be seen.” The message here is that we are His beloved servants and He desires to see us, as it says in the Gemara (Chagigah 4b), “A servant whom his master desires to see.” Furthermore, the Gemara describes Klal Yisroel as “the servant whom the master desires to eat at his table.”

May we soon merit fulfilling this mitzvah in the third Beis Hamikdash, may it be rebuilt speedily, and that Hashem should look upon us favorably! Wishing all of our readers, together with all of Klal Yisroel, a good Yom Tov!

 

The Borders: How Much is Ours?

Question #1: Exotic Island Fruit

jaffa-israel“According to my grocer, this fruit grew on an island in the Mediterranean that is directly west of Israel. Is it prohibited because of orlah?”

Question #2: The Golan

Is the Golan part of Biblical Eretz Yisroel?

Question #3: Cairo

“Is Cairo in Israel?”

Answer:

To answer these questions, we need to clarify what are the areas and boundaries of Eretz Yisroel. Many of the laws concerning the mitzvos hateluyos ba’aretz, the agricultural mitzvos, as well as some other halachos are affected by the sanctity of Eretz Yisroel, so it behooves us to know exactly which areas are holy and which are not. As we will soon learn, researching this topic requires not only a thorough knowledge of the Gemara passages involved, but also knowledge of Tanach, geography, topography and history. We will begin with some basic study of the relevant Chumash.

Introduction

In several places in Chumash, the borders of the Promised Land are mentioned, including:

  1. Avraham Avinu is promised that his descendants will receive the land from the “River of Egypt” to the “great river, the Euphrates” (Bereishis 15:18).
  2. In Parshas Mishpatim (Shemos 23:31), the Torah tells us, I will set your boundaries from the Red Sea until the Sea of the Philistines and from the desert until the river.
  3. There is a very detailed description of the borders of the Promised Land in Parshas Masei, which we will discuss shortly.
  4. At the beginning of Parshas Devorim, the Torah describes the different areas of Eretz Yisroel: Travel for yourselves along the mountains of the Emori and its neighboring areas, in the Aravah, in the mountains, in the lowlands, in the Negev, along the seashore; the land of the Canaanites and Lebanon, until the great river, the Euphrates (Devorim 1:7).
  5. There is another brief description at the very end of Parshas Eikev, where it says: Every place upon which the sole of your foot will tread will be yours: from the desert and Lebanon, from the Euphrates River until the far sea will be your border.

In addition to these descriptions in the Torah, there are also references in Nach, notably in the books of Yehoshua (1:4; and the entire chapter 15) and Yechezkel (Chapter 47:15-22).

History

As I mentioned above, history actually affects, in a significant way, whether a particular area has kedushas Eretz Yisroel. Min hatorah, after the destruction of the first Beis Hamikdash by the Babylonians, the mitzvos hateluyos ba’aretz apply only to land that was part of the area settled by the Jews when they returned to Eretz Yisroel to build the second Beis Hamikdash in the days of Ezra. In other words, these laws no longer apply Min hatorah in the areas settled by Yehoshua, unless they were also part of the later Jewish settlement, referred to as the second Jewish commonwealth (Shevi’is 6:1).

The Gemara teaches that areas that were conquered at the time of Yehoshua lost their sanctity when the Jews were exiled by the Babylonians. The Rambam (Hilchos Terumos 1:5) explains that since these lands were obtained via conquest, subsequent invasion and defeat of the Jewish nation caused the sanctity to lapse.

However, those areas that became obligated in mitzvos in the days of Ezra retained their sanctity, even after the Roman conquest and destruction of the Beis Hamikdash, notwithstanding that the Jews had again lost sovereignty over the Holyland.

Shevi’is

Regarding the laws of shevi’is, those areas conquered by Yehoshua but not settled in the days of Ezra may not be worked during shemittah year; but, Chazal were more lenient regarding some of the other applicable laws (Shevi’is 6:1).

Transjordan, the territory east of the Jordan River known in halachah as eiver hayarden, is not part of the Promised Land, yet it is usually included under the mitzvos hateluyos ba’aretz. We have the anomalous situation in which an area that was not promised to us is sanctified with kedushas ha’aretz, whereas much of the area promised to us is not.

Thus, when defining which areas are included under the mitzvos hateluyos ba’aretz, we take into consideration several factors:

Where is this land? Is it part of the Promised Land?

Is this part of the land that Moshe conquered?

Is this part of the land that Yehoshua conquered?

Is it within the area settled in the days of Ezra?

This week’s parshah

Let us now examine the most detailed of the descriptions provided by the Torah, the one in Parshas Masei.

This is the land that will fall to you as your possession – the Land of Canaan, according to its borders. And the southern edge begins from the Desert of Tzin near Edom. The easternmost point of your southern border shall be the edge of the Dead Sea. Then the border will turn southward to the Heights of Akrabim and then pass to Tzin, from where it will extend southward to Kadeish Barnea. It will then turn to Chazar Adar and pass to Atzmon. The border will then turn from Atzmon to the Stream of Egypt and extend towards the sea.

The western border will be the Great Sea and its “gevul,” its territory; that will be for you the western border.

And this will be your northern border: From the Great Sea, you should turn to Mount Hor. From Mount Hor, you should turn as you were going to Chamos, and the border extends then to Tzedad. The border then turns to Zifron and extends to Chatzar Einan; this will be for you the northern border.

And demarcate for yourselves the eastern border from Chatzar Einan to Shefam. The border will then run down from Shefam in the direction of Rivlah to the east of Ayin. The border will then run down and extend to the eastern shoulder of the Kineret Sea. From there, the border will run down the Jordan and extend to the Dead Sea. This will be for you the land with all its borders all around (Bamidbar 34:2-12).

There is a vast literature attempting to identify the various place names mentioned here, which includes explaining the distinction in nuance among the different terms (“run down,” “extend,” “going to,” “turn,” etc.), and attempting to correlate this description with the boundaries of Eretz Yisroel as they are mentioned in other places in Tanach. It is well beyond the scope of this article to provide an exhaustive study of all the works written on the subject. We should note that many great historical figures who were talmidei chachamim have endeavored to identify the borders of Eretz Yisroel and the descriptions of the pesukim, and that the discussion continues in the contemporary world. For the purpose of this article, we will be content with a few relatively sparce observations.

The southern border

In Parshas Masei, the Torah describes the easternmost point of the southern border to be the Dead Sea and its westernmost point to be the Stream of Egypt. Note that Avraham Avinu was promised from the River (in Hebrew, nahar) of Egypt, whereas in Parshas Masei, we are promised from the Stream (in Hebrew, nachal) of Egypt. Are these the same body of water? If they are not, what was Avraham promised, and why did we not receive it?

According to most interpretations, they are not the same — the Stream of Egypt is the Wadi El Arish in the northern part of the Sinai Desert, whereas the River of Egypt is the Nile. According to this approach, Avraham Avinu was promised that one day in the future, his descendants would have much more extensive holdings to the south and southwest than they have ever controlled in history, even after Ariel Sharon crossed the Suez Canal, thereby capturing the Egyptian Third Army to end the Yom Kippur war. As Rashi explains, Avraham Avinu was promised the land of ten nations, including Keini, Kenizi and Kadmoni, which Rashi equates with Edom, Moav and Amon, but these are not the borders the Bnei Yisrael will or did possess upon entering the Land in the days of Yehoshua. The Malbim (in his commentary to Bamidbar 34) explains that the borders promised at the end of Parshas Eikev (Devorim 11:24) also reflect a promise in our distant future, when the Jewish people will acquire much more territory than what was possessed in the days of Yehoshua. According to this approach, no part of Egypt is yet part of Eretz Yisroel.

The Ramban (Devorim 11:24), however, explains this verse differently, understanding that the borders of Parshas Eikev describe the area that we are commanded to conquer. This is consistent with his opinion that one of the taryag mitzvos requires that we conquer Eretz Yisroel, a topic that we will leave for a different time.

A river or a stream?

On the other hand, some major commentaries interpret the Stream of Egypt of Parshas Masei to be the Nile, not the Wadi el Arish, making the Eretz Yisroel promised to Yehoshua far more expansive in the south and southwest. Since Cairo is on the eastern bank of the Nile, this approach considers Cairo to be located in Eretz Yisroel! Thus, the third of our opening questions “Is Cairo in Israel?” is actually a serious question, and technically is the subject of a dispute among halachic authorities.

We will return to our discussion of the southern border; but first, let us complete our reading of the other three borders.

The western border

In Parshas Masei, the Torah describes the western border of Eretz Yisroel:

The western border will be the Great Sea, and its territory [“ugevul”]; that will be for you the western border. (I have followed the translation of Rav Hirsch that the word gevul means its territory.) According to the Gemara (Gittin 8a), the word ugevul teaches that there are islands in the Mediterranean that are halachically considered part of Eretz Yisroel. There, the Gemara quotes a dispute between tanna’im regarding which islands located in the Mediterranean, the “Great Sea” of the pasuk, are halachically part of Eretz Yisroel and which are not. Rabbi Yehudah contends that the word ugevul means that any island in the Mediterranean that is directly west of Eretz Yisroel is imbued with the sanctity of the Holyland, whereas the Rabbonon’s understanding includes a more limited area. They draw an imaginary line from the northwesternmost point of Eretz Yisroel to its southwesternmost point and include only islands that are east of this imaginary line. In practice, there are very few islands in this small corridor of the eastern Mediterranean that are directly west of Eretz Yisroel.

Orlah in chutz la’aretz

Although the mitzvah of orlah, the prohibition of benefiting from fruit grown on a tree during its first three years, applies to fruit grown outside of Eretz Yisroel, its law is far stricter on produce that grows in Eretz Yisroel. In Eretz Yisroel, one may not use a fruit without first determining that the fruit is very unlikely to be orlah. In chutz la’aretz, the fruit is prohibited only when one is certain that it is orlah.

Islands in the Mediterranean

This allows us to discuss the first of our opening questions: “According to my grocer, this fruit grew on an island in the Mediterranean that is directly west of Israel. Is it prohibited because of orlah?”

We now know that if this island is imbued with the sanctity of Eretz Yisroel, then we may not use the fruit unless we are fairly certain that it is not orlah. However, if the island is outside Eretz Yisroel we may consume the fruit, as long as we are uncertain that it is orlah. According to Rabbi Yehudah, any Mediterranean island directly west of Eretz Yisroel is imbued with the sanctity of the Holyland, and fruit grown on this island needs to be treated with the same stringency as fruit growing on the mainland. According to the Rabbonon, which is the normative halachah, only islands that are very near Eretz Yisroel are halachically part of the Holyland, because they are east of the “line” that runs from the northwest corner of Eretz Yisroel to its southwest corner. Since there are very few islands in this small corridor of the eastern Mediterranean, from a practical perspective, one may assume that the fruit in the grocery does not have kedushas Eretz Yisroel.

The northern border

Parshas Masei’s description of the northern border begins at the Mediterranean (The Great Sea) at Mount Hor and then passes through Chamos, Tzedad, Zifron and Chatzar Einan. There are widely variant opinions as to where these places are. Some contend that Mount Hor is as far north as southern Turkey, others placing it north of Latakia, in contemporary Syria, whereas others peg it much further south, not far from Beirut. All opinions have it considerably further north than any of the borders of the contemporary State of Israel.

The eastern border

Parshas Masei’s description of the eastern border has it beginning in the north at Chatzar Einan and then running through Shefam, Rivlah, east of Ayin to the eastern shoulder of the Kineret, down the Jordan River and into the Dead Sea. We should note that, according to most, if not all, opinions, the northeastern area of Eretz Yisroel extends much further east than the Jordan. According to all of the Torah’s descriptions, the Jordan is the eastern border of the central plain of Eretz Yisroel. Thus, the area northeast of the central plain, what we call today the area of the Golan and further north, is much wider than the central part of Eretz Yisroel, which extends only until the Jordan.

In addition, Transjordan, or the area east of the Jordan River, which had previously been controlled by Sichon and Og, came under Jewish rule as the eiver hayarden prior to the entry into Eretz Yisroel proper, notwithstanding the fact that it was not part of the Promised Land. This was the area settled by the tribes of Reuven, Gad and half of Menashe.

Difficult passage

At this point, let us examine a very difficult, albeit brief, passage of the Torah. The Torah, in Parshas Mishpatim, describes the borders of Eretz Yisroel as extending from the Yam Suf until the Sea of the Philistines and from the desert until the river? There are several questions here: First, when did Eretz Yisroel ever extend to the Red Sea (the Yam Suf), which is in Egypt? Certainly, at the time of the Exodus from Egypt, the Bnei Yisroel, did not immediately arrive in the Promised Land when they crossed the Yam Suf! (However, see Tosafos, Arachin 15a s.v. Kesheim.)

Second, the Mediterranean, which is the Sea of the Philistines, is the western border of Eretz Yisroel. How then could Eretz Yisroel be described as stretching from the Yam Suf, on its west, to the Mediterranean, also to its west?

The Rashbam explains that the Torah means that the Yam Suf is the eastern border of Eretz Yisroel and that from the Yam Suf until the Sea of the Philistines means from east to west. This follows the approach of the Rashbam’s grandfather, Rashi (Shemos 10:19), who explains the Torah to mean from the Yam Suf on the east, meaning, presumably, from the Gulf of Eilat (also called the Gulf of Aqaba), which is an inlet of the Red Sea, to the Mediterranean Sea on the west. According to this approach, from the desert until the river means from the desert on the south to the Euphrates on the north. A result of this calculation is that the entire Negev is within the southern borders of Eretz Yisroel.

The Netziv rejects the approach of Rashi and the Rashbam. The obvious reason for his criticism is that the Gulf of Eilat is not, by far, the easternmost point of Eretz Yisroel, so why would this be used as a promise of the expansion of the land? The Netziv contends that the Yam Suf, the Red Sea, is meant to be the southern border, and that from the Yam Suf until the Sea of the Philistines means from south to west, notwithstanding, as he notes, the fact that one usually describes an expanse from opposite sides; here, it is not the case. The Netziv, therefore, explains that from the desert until the river refers not to the desert of the southern border of Eretz Yisroel, but the eastern border. This means that the border referred to is neither the Sinai desert nor the Negev, but the Jordanian desert, and it is including Transjordan, after it was conquered from Sichon and Og.

Conclusion

Many generations had to be content with reading about Eretz Yisroel and imagining what the descriptions of its borders mean. We are fortunate to live in a time when visiting and even living in Eretz Yisroel is a reality. We should be filled with hakoras hatov that we can traverse the land that was promised to our forefathers. Inhabiting our native land reminds us that it is a land of elevated kedushah, and therefore requires special laws that apply within the halachic borders of this special land. Furthermore, living in Eretz Yisroel provides us with a direct relationship to Hashem, for which we should all strive.

 

Sifting the Makom HaMikdash

Now that the “Three Weeks” has begun, I am sharing with you my reflections on an appropriate halachic topic.

Sifting the Makom HaMikdash

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Recently, someone asked me a shaylah that involves what is probably one of the most heart-breaking issues I was ever asked. The question was: “Are there any halachic issues involved in sifting through the earth removed by the Waqf from the Makom HaMikdash?”

To explain this shaylah, I will first explain what has happened, then discuss the halachic issues involved — and finally explain the answers. There is also a fascinating halachic-architectural issue that I noticed while studying photographs of the Moslem construction, which I will discuss at the end of this article.

During the past many years, the Waqf, the Moslem “Trust” that controls the holiest place on earth, the Har HaBayis, has been making major “renovations” there, including the construction of yet another mosque – this one located near the Shaarei Chuldah, which is the southern entrance to Har HaBayis. These gates are called Shaarei Chuldah because Chuldah the Prophetess stood between these two gates and admonished the Jews to do teshuvah.

For clarification purposes: The Kosel HaMaaravi where we daven is part of the Western Wall of the Har HaBayis, known in English as “the Temple Mount,” which is the top of the mountain called Har HaMoriah. The Beis HaMikdash included open courtyards as well as the structure that stood on the Har HaBayis, but occupied only a small area of the mountain. Although the Har HaBayis has much more kedusha than that of Yerushalayim, the Beis HaMikdash has much greater kedusha than that of the Har HaBayis. Someone entering the area where the Beis HaMikdash once stood is chayov kareis, an extremely severe punishment.[i] The Mishnah (Keilim 1:8-9) lists seven levels of kedusha above that of Yerushalayim — the highest being that of the Holy of Holies, the Kodesh HaKodashim area of the Beis HaMikdash, that only the kohen gadol may enter, and then, only to perform the service on Yom Kippur.

As we said, the Har HaBayis has far less sanctity than the Beis HaMikdash. Nevertheless, most contemporary poskim prohibit ascending the Har HaBayis. A minority of poskim permit entering areas of the Har HaBayis that are not part of the Beis HaMikdash in order to daven or perform a mitzvah, but only after one has performed certain taharah procedures, including washing one’s self thoroughly, making certain that one has no chatzitzos (interrupting substances on one’s body), and immerses oneself in a mikveh. All agree that it is prohibited to enter any part of the Har HaBayis if one is tamei with what halacha calls tumah hayotzei migufo, which includes people who are baalei keri, zav, zavah, niddah and yoledes.

The Moslem construction

The Moslem construction is without any permits and is illegal. However, the Israeli authorities refuse to interfere, citing concerns about violence! One of the Waqf’s goals is to obliterate any remnants of the Batei HaMikdash from the Har HaBayis so that they can persist with their lies that Jews never lived in Israel, and that the Batei HaMikdash never existed. The Waqf has removed hundreds of truckloads of “debris” from the Har HaBayis, which they dump in the Kidron Valley and other sites around Yerushalayim.

With the help of volunteers, Israeli archeologists are painstakingly sifting through the rubble removed from the Har HaBayis, to look for artifacts. (Thus, there is no halachic concern of ascending to the Har HaBayis.) Someone asked me whether he can volunteer for this work, citing the following potential shaylos:

  1. Is there a halachic concern that in the unearthing of these items someone is receiving personal benefit from property of the Beis HaMikdash, thus violating the severe Torah prohibition called me’ilah.
  2. Since we are all tamei, is there concern that one might be rendering impure (i.e., making tamei) property or the stones of the Beis HaMikdash?
  3. What are we required to do with stones or earth that were originally part of the Beis HaMikdash or the Har HaBayis?
  4. The remnants being unearthed include bone fragments, some of them human. This leads to two specific questions: (a) May a kohen work in this project? (b) Is there a halachic concern of mistreating the dead, since these human remains will not be buried afterwards, but will be stored and used for scientific research and study?
  5. Some artifacts that surface are clearly from what were once idols. Is there a halachic requirement to destroy them? Is it the finder’s responsibility to destroy them, something which the archeologists do not permit?

The archeological finds

Now some background on what the search is revealing, so that we can explain the halachic issues raised. Everything found on the Har HaBayis has a dark gray-ash color, rather than the typical white limestone color of Yerushalayim earth. This is because the fires of the destructions that transpired discolored the Har HaBayis earth.

Every bucketful of sifted earth contains numerous historical items, including coins, pottery and glass fragments,  arrowheads and other primitive weapons and pieces of human or animal bone. Coins unearthed date from as early as the second Beis HaMikdash to as late as the period of Napoleon III (mid-nineteenth century). The pieces of animal bone are presumably from what people ate there – possibly, leftovers from korbanos, but also leftovers of non-Jewish meals of the last centuries.

Other remnants unearthed are connected with the churban, such as Babylonian and Roman arrowheads, and Roman catapult projectiles, all sad reminders of the Jews who died there during the two churbanos.

Probably a greater reminder of the churban is the general attitude of the Moslems, who, in effect, rule over the Har HaBayis today. One would think that the Moslems would treat the Har HaBayis with some level of sanctity, since they claim that it is one of their holy sites. Unfortunately, this is not true. The workers loiter and smoke there, and children play soccer. Their chief concern seems to be that Jews not pray there.

We can now begin to answer the questions raised above:

Beis HaMikdash property

Question #1: Is there a halachic concern that in the unearthing of these items someone is receiving personal benefit from property of the Beis HaMikdash thus violating the severe Torah prohibition called me’ilah.

Much broken pottery has been found among the artifacts. These items are of great archeological curiosity because they indicate who used the Har HaBayis and ate their meals there over the millennia. Halachically, we know that kohanim ate meat of the holier korbanos only in the Beis HaMikdash area. After cooking these korbanos, the halacha required that the earthenware pots used be broken in a holy area of the Beis HaMikdash.[ii] The shards discovered may indeed be remnants of these vessels. However, these earthenware pieces have no sanctity, since all holy vessels were manufactured from metal only.

Remnants of holy vessels

Many types of holy vessels, such as bowls, baking dishes, forks, and numerous other items were used in the service in the Beis HaMikdash. What is the halacha if someone found a usable metal item that might be one of the holy vessels of the Beis HaMikdash, or something that might be a remnant from the mizbayach (the altar)? Is there a prohibition of me’ilah in using these items?

Because of complicated halachic issues, the poskim dispute whether one would violate me’ilah in such a case. Allow me to explain. Based on a pasuk in Yechezkel,[iii] the Gemara presents us with a halachic concept referred to as “ba’u peritzim vichilaluhu” – when the lawless entered, they removed its sanctity, meaning that under certain circumstances, misuse of Beis HaMikdash vessels defiles them and removes their kedusha.[iv] The Rishonim dispute when this concept applies. The Baal HaMaor explains that when the Hellenized Jews used the mizbayach of the Beis HaMikdash inappropriately (during the events prior to the Chanukah story), this defiling removed the sanctity from the stones of the mizbayach. In his opinion, the other vessels of the Beis HaMikdash still maintain their sanctity, and, furthermore, only Jews can cause the kedusha to be removed, not gentiles. Thus, according to the Baal HaMaor, someone who uses a vessel of the Beis HaMikdash today violates the severe prohibition of me’ilah. The Ramban disagrees with the Baal HaMaor, explaining that when the gentiles entered the Beis HaMikdash to destroy it, they profaned the sanctity of the building and its vessels. In his opinion, someone who subsequently made use of these vessels for his own personal purposes would not violate any prohibition of me’ilah. As a result of this dispute, one should not use a metal utensil found in the Har HaBayis ruins, because of the possibility of committing me’ilah, based on the Baal HaMaor’s stricter opinion.

Question #2: Since we are all tamei, is there concern that one might be profaning (i.e., making tamei) property or the stones of the Beis HaMikdash?

I could find no halachic literature directly discussing this shaylah. There is a prohibition of making something tamei in the Beis HaMikdash.[v] However, I am unaware of any halachic source that prohibits making these items tamei once they have been removed from the Beis HaMikdash grounds. Furthermore, stones themselves do not become tamei.

Question #3: What are we required to do with stones or earth that were originally part of the Beis HaMikdash or the Har HaBayis?

Destroying the Beis HaMikdash (chas veshalom)

To destroy any part of the Beis HaMikdash violates a Torah prohibition.[vi] This includes removing a stone from the mizbayach or from any other part of the Beis HaMikdash with the intent of destroying it.[vii] To destroy items that belong to the Beis HaMikdash, even those that are not used for a holy purpose (kodashei bedek habayis), or to intentionally destroy part of the Har HaBayis  is prohibited miderabbanan.[viii]

Is there a responsibility to bury the broken stone from the Beis HaMikdash or from the Har HaBayis?

The halacha is that damaged stone from the Beis HaMikdash or its vessels must be buried, just as we bury worn-out sifrei Torah.[ix] Thus, the halacha requires that stone or other remains from the Beis HaMikdash be respectfully buried. Unfortunately, today, the stone and other remains that have no archeological value are simply abandoned at the worksite.

Does the earth from the Har HaBayis have sanctity?

The Mizbayach Adamah,[x] whose author was the rav of Yerushalayim during part of the eighteenth century, discusses a shaylah whether grapes grown on the Har HaBayis are prohibited because of me’ilah. From his discussion, it is clear that he considers all earth of the Har HaBayis to have kedusha that might create a prohibition of me’ilah. Thus, the same concerns I raised above about the stone remains exist concerning the earth itself, and it must be buried in a respectful way.

Question #4: The remnants unearthed include bone fragments, some of them human. This leads to two specific questions:

(a) May a kohen participate in this project?

(b) Is there a halachic concern of mistreating the dead, since these human remains will not be buried afterwards, but will be stored and used for scientific research and study?

Human bones

The discovery of human bone fragments on the Har HaBayis is puzzling, since Jews would never have buried anyone there. In all likelihood, these are bones of non-Jews that were interred there, or perhaps of Jews who were killed on the Har HaBayis and, unfortunately, not buried according to halacha. Even if we assume that these are bones of non-Jews, a fragment as small as the size of a barleycorn will convey tumah, if moved or touched. Therefore, since there is a reasonable chance that a kohen might touch or lift a human bone fragment, he should refrain from participating in this project.

Burial

Does a non-kohen need to be concerned about the possibility that he will locate bones, and that he now has a mitzvah to bury them?

If one can assume that the bones discovered were from non-Jews, there is no mitzvah to bury them, but only to be certain that they do not render a kohen impure. Even if the bones are from a Jew, it is unclear whether the mitzvah of burying a Jewish meis applies to such a small amount. The Mishneh LaMelech[xi] rules that the mitzvah of kevurah does not apply to part of a corpse, whereas the Tosafos Yom Tov[xii] rules that one is required to bury a piece of a Jewish meis as small as a kezayis. However, it is unclear how small a piece of bone requires kevurah.

Avodah Zarah

Question #5: Some artifacts that surface are clearly from what were once idols. Is there a halachic requirement to destroy them? Is it the finder’s responsibility to destroy them, something which the archeologists do not permit?

Some background to this shaylah: It is prohibited to benefit from an idol; furthermore, there is a Torah mitzvah to destroy idols in a way that no one can ever benefit from them.[xiii] The suggested method is to grind up the idol and scatter the filings to the wind or the sea. One may also not benefit from a broken idol, and the same halachic requirement exists to destroy it.[xiv] Obviously, the archeologists overseeing the work will not allow this halacha to be fulfilled.

Thus, in conclusion, it appears that one unless one found usable metal vessels, one does not need to be concerned about using Beis HaMikdash property while sifting earth removed from the Har HaBayis. It also seems that a non-kohen may participate in these activities if he can have control over the items that he finds and can destroy the idols and bury the human bones and any remains from the Beis HaMikdash that he may find. However, he may not participate as a member of a “dig team,” where he is forced to follow the instructions of an archeologist who is not following halachic guidelines.

A halacha background

From photographs I have seen of the new mosque, it appears that the Waqf did very little actual construction, but simply hollowed out one of the underground archways as it was originally constructed when the Beis HaMikdash was built. Explaining this underground construction is, in itself, a fascinating halachic subject.

Underground archways

Someone who stands above a buried corpse or part of a corpse becomes tamei (with the exception of the case I will describe below). When the Beis HaMikdash was built, the building was constructed in a way that it was impossible to become tamei, even if someone was once buried in the earth beneath the Beis HaMikdash, itself an almost impossible scenario. In order to eliminate the possibility of someone becoming tamei from such a corpse, the Har HaBayis was constructed with “archways on top of archways.”[xv]

To explain this construction, I will elucidate how tumas ohel works. If there is tumas meis under a building, tumah spreads throughout the building, but does not spread above the building. Therefore, someone walking on the roof of the building remains tahor, even though he walked directly above the meis.

Similarly, if one constructs an archway, and there is tumah under the roof of the archway, the tumah spreads underneath this entire archway, but not above it. This is because an archway is a building –tumah spreads underneath it, but the archway prevents tumah from rising above it.

However, if the meis was buried beneath the pillar of an archway, the tumah is not inside the ohel, but under the pillar – and the tumah rises vertically and contaminates the area directly above it.

The way to prevent this tumah from proceeding upward and rendering people above it tamei is to construct another archway directly above the pillar. This way, although the tumah will rise through the pillar of the lower archway, it will then remain within the ohel of the upper archway and not spread above it.

This is the concept of “archways on top of archways” — where both of the upper archway’s pillars rest on the arch of the lower archway, which effectively blocks tumas ohel from spreading from the ground below to any area above the double archway. If the meis is beneath the arch of the lower archway, the lower archway blocks tumah from rising above it, and if the tumas meis is beneath the pillar of the lower archway and its tumah rises above the lower archway, it will be blocked by the upper archway.

Thus, to avoid any possible tumas meis in the Beis HaMikdash, the entire Har HaBayis was constructed with underground double sets of archways, thereby guaranteeing that no tumas meis could spread upward from a meis below. The Waqf apparently cleared out the debris accumulated under one of these archways, and used it as the roof of their mosque!

Incidentally, this method of making “archways on top of archways” is used to correct the problem of roads discovered to pass over graves or cemeteries. In this instance, very small “archways” are constructed, but this is sufficient, because to accommodate this halachic problem, each section of archway-ohel needs to be only a tefach high.

We all hope and pray that the day will soon come when the Beis HaMikdash returns as the Bayis Shlishi, and we will ascend to the Har HaBayis in purity, sanctity, and joy to serve Hashem by observing all of the mitzvos.

An earlier version of this article was published in From Buffalo Burgers to Monetary Mysteries. If you would like to purchase this book, or From Vanishing Importers to Vultures’ Wings, or any of my Hebrew publications, please contact me by e-mail.

 

 

[i] Kaftor VaFerech, Chapter 6; Kesef Mishneh, Hilchos Beis HaBechirah 6:14; Magen Avraham 561:2; Shu’t Binyan Tziyon #2.

[ii] Zevachim 93b

[iii] 7:22

[iv] Avodah Zarah 52b

[v] Mishnah and Gemara Eruvin 104b; Rambam, Hilchos Bi’as HaMikdash Chapter 3

[vi] Rambam, Hilchos Yesodei HaTorah 6:7

[vii] Rambam ibid.; and Hilchos Beis HaBechirah 1:17

[viii] Shu’t Achiezer, Yoreh Deah #49; Aruch HaShulchan HeAsid 4:24-25; Minchas Chinuch #437

[ix] Tosefta, Megillah 2:10; Rambam, Hilchos Beis HaBechirah 1:15

[x] Cited by Machazik Bracha, addendum to Orach Chayim 151

[xi] End of Hilchos Aveil

[xii] Shabbos 10:5

[xiii] Rambam, Hilchos Avodah Zarah 7:1; Shulchan Aruch, Yoreh Deah 146:14

[xiv] Shulchan Aruch, Yoreh Deah 146:11

[xv] Mishnah, Parah 3:3; Rambam, Hilchos Beis HaBechirah 5:1

Post-Shmittah Awareness for the Eretz Yisroel and Chutz La’Aretz Consumer

If you are in Eretz Yisroel, you should be receiving this article on Parshas Behar. If you are in chutz la’aretz, you are receiving it the same week, but a parshah earlier.

 

How can we pass Parshas Behar immediately following a shmittah year without discussing the laws of shmittah? Yet many chutz la’aretz residents see no need to learn these laws, assuming that locally available produce is never affected.

Well — guess again. Although, according to the halacha, one may not export shmittah produce outside Israel (Mishnah Shvi’is 6:5), much produce finds its way there. And, even in chutz la’aretz, we must treat fruit of Eretz Yisroel with kedushas shvi’is, according to all of the laws we will now discuss.

Situation #1: WHAT A ROAST!!

Traditional English Sunday roast with Yorkshire pudding and summer vegetables macro close up isolated on white

When I was a rav in America, a knowledgeable housewife cooked a delectable roast, using wine whose label indicated that it had kedushas shvi’is. Although she had no idea what this term meant, her son pointed out that they needed to ask a shaylah what to do with the roast. To make a long story short, the entire roast had to be treated with kedushas shvi’is; I will soon explain what this means.

Situation #2: WHAT ARE SEFICHIN?

“I noticed a sign in shul that the fruits and vegetables in the local supermarket are from Israel and must be treated appropriately. Someone told me that the vegetables are prohibited because they are sefichin. What does that mean?”

Situation #3: WHAT WOULD YOU RULE?

Several shmittah cycles ago, I was working as a mashgiach for a properly-run American hechsher. One factory that I supervised manufactured breading and muffin mixes. This company was extremely careful about checking its incoming ingredients: George, the receiving clerk who also managed the warehouse, kept a careful list of what products he was to allow into the plant and what kosher symbols were acceptable.

On one visit to the plant, I noticed a problem, due to no fault of the company. For years, the company had been purchasing Israeli produced freeze-dried carrots with a reliable hechsher. The carrots always arrived in bulk boxes with the Israeli hechsher prominently stamped in Hebrew and the word KOSHER prominently displayed in English. George, who always supervised incoming raw materials, proudly showed me through “his warehouse” and noted how he carefully marked the arrival date of each new shipment. I saw crates of the newest shipment of Israeli carrots, from the same manufacturer, and the same prominently displayed English word KOSHER on the box. However, the Hebrew stamp on the box was from a different supervisory agency, one without the same sterling reputation. The reason for the sudden change in supervisory agency was rather obvious, when I noted that the Hebrew label stated very clearly “Heter Mechirah.”

First, let us discuss the basics:

LAWS OF THE LAND

In this week’s parsha, the Torah (VaYikra 25:1-7) teaches that every seventh year is shmittah; we are prohibited from working the land of Eretz Yisroel and must leave our land fallow (Avodah Zarah 15b). Just as observing the seventh day, Shabbos, demonstrates our belief in the Creator, so too, observing every seventh year as shmittah demonstrates this faith. The landowner must treat whatever grows as ownerless, allowing others to enter his field or orchard to pick and take its produce. The picker may take as much as his family will eat, and the landowner himself also may take this amount (see Rambam, Hil. Shmittah 4:1).

LAWS OF THE FRUIT

Although shmittah observance today is mandated only miderabbanan (see Moed Katan 2b; Chazon Ish, Shvi’is 3:8), nevertheless, most of its laws are the same as they will be when observing shmittah will again become a mitzvah min hatorah. The Torah imbues shmittah produce with special sanctity, called kedushas shvi’is, declaring vihaysa shabbas ha’aretz lochem le’ochlah, “the produce of the shmittah should be used only for food” (VaYikra 25:6). According to accepted opinion, one is not obligated to eat shmittah food – rather, the Torah grants us permission to eat it, and we must treat it accordingly (Chazon Ish, Hil. Shvi’is 14:10). There is much halachic detail involved in correct use of shmittah produce. For example:

  1. One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1). Although one may pick shmittah produce for one’s personal consumption, one may not harvest it to sell commercially (Tosefta, Shvi’is 5:7).
  2. One may not export shmittah produce outside Eretz Yisroel (Mishnah Shvi’is 6:5). There are opinions that allow exporting shmittah wine and esrogim; however, the rationales permitting this are beyond the scope of this article (Beis Ridbaz 5:18; Tzitz HaKodesh, Volume 1 #15:4).

III. Shmittah produce is intended for Jewish consumption; you may not give or sell kedushas shvi’is produce to a gentile, although you may allow him to join you for your meal (Rambam, Hil. Shmittah 5:13 and Mahari Korkos ad loc.).

  1. If one trades or sells the shmittah produce, the food or money received in exchange also has kedushas shvi’is (Sukkah 40b). (Because of space constraints, I will leave details of these halachos for another time.)
  2. One may not ruin shmittah produce (Gemara Pesachim 52b).

What types of “ruining” did the Torah prohibit? One may not cook foods that are usually eaten raw, nor may one eat raw produce that is usually cooked (Yerushalmi, Shvi’is 8:2; Rambam, Hil. Shvi’is 5:3). Therefore, one may not eat raw shmittah potatoes, nor may one cook shmittah cucumbers or oranges. Contemporary authorities dispute whether one may add shmittah orange or apricot to a recipe for roast or cake. Even though the roast or cake is delicious because of the added fruit, many poskim prohibit this cooking or baking, since these fruit are usually eaten raw (Shu”t Mishpat Cohen #85). Others permit this, if it is a usual way of eating these fruits (Mishpetei Aretz page 172, footnote 10).

One may feed shmittah produce to animals only if it is not considered fit for human consumption. This includes varieties grown for fodder, as well as peels and seeds that people do not usually eat (Rambam, Hilchos Shmittah 5:5). A neighbor of mine, whose finicky pet turtle prefers to eat lettuce, had a problem what to feed it. Before shmittah he was trying to get it to eat grass, but the turtle preferred lettuce. Oi, is shver tzu zein a turtle!

Similarly, juicing vegetables and most kinds of fruit is considered “ruining” the shmittah produce and prohibited, although one may press grapes, olives and lemons, since the juice and oil of these fruits are considered improvements. Many contemporary authorities permit pressing oranges and grapefruits, provided one treats the remaining pulp with kedushas shvi’is. Even these authorities prohibit juicing most other fruit, such as apples and pears (Minchas Shelomoh, Shvi’is pg. 185).

RUINING VERSUS EATING

How do we determine whether processing a food “ruins” it or not? Many poskim contend that if the processing changes the food’s preferred bracha, one may not perform such processing on shvi’is produce (Shu”t Mishpat Cohen #85, based on Gemara Brachos 38a and Rambam, Hilchos Shvi’is 5:3). Since turning apples to juice reduces their bracha from ha’eitz to shehakol, this would be considered “ruining” the apples. Similarly, the fact that one recites the bracha of shehakol prior to eating a raw potato or cooked cucumbers or oranges demonstrates that treating them this way ruins the produce. According to this approach, one may not press oranges or grapefruits either, since one recites shehakol and not ha’eitz on the juice (Shu”t Mishpat Cohen #85).

Those who permit squeezing oranges and grapefruits apply a different criterion, contending that since this is the most common use of these fruit, it is permitted (Minchas Shelomoh, Shvi’is pg. 185).

One must certainly be careful not to actively destroy shmittah produce. Therefore, one who has excess shvi’is produce may not trash it in the usual way. Similarly, peels that are commonly eaten, such as cucumber or apple, still have shmittah kedusha and may not simply be discarded. Instead, contemporary practice is to place these peels in a plastic bag and then place the bag in a small bin or box called a pach shvi’is, where it remains until the food is inedible. When it decomposes to this extent, one may dispose of the shmittah produce in the regular garbage.

When eating shmittah food, one need not be concerned about the remaining bits stuck to a pot or an adult’s plate that one usually just washes off; one may wash these pots and plates without concern that one is destroying shmittah produce. However, the larger amounts left behind by children, or leftovers that people might save should not be disposed in the garbage, but should be scraped into the shmittah bin.

WHY DECOMPOSE?

This leads us to a question: If indeed one may not throw shmittah produce in the garbage because it has sanctity, why may one do so after the produce decomposes? Does decomposition remove kedusha?

Indeed it does. Kedushas shvi’is means that as long as the food is still edible, one may not make it inedible or use it atypically. This is because shmittah food is meant to be eaten, even though there is no requirement to do so. However, once the shmittah food is inedible, it loses its special status, and may be disposed of as trash.

SANCTITY UNTIL SPOILAGE

This sounds very strange. Where do we find that something holy loses its special status when it becomes inedible?

Although the concept that decay eliminates sanctity seems unusual, this is only because we are unfamiliar with the mitzvos where this principle applies. Other mitzvos where this concept exists are terumah, challah, bikkurim, revai’i and maaser sheini, all cases where, in today’s world, we, unfortunately, cannot consume the produce because we are tamei (Rambam, Hilchos Terumos Chapter 11; Hilchos Maaser Sheini 3:11). Of these types of produce that are holy, but meant to be eaten, only shvi’is may be eaten by someone tamei. Even though someone tamei may not consume tahor terumah, challah, or maaser sheini, in these cases, as well, one may not dispose of or burn them. Instead, one must place them in a secure place until they decay and only then dispose of them (Tur, Yoreh Deah 331). (We burn the special challah portion after separating it only because it has become tamei. If it did not become tamei, we could not destroy the challah portion, but we would place it somewhere until it decays on its own, just as we do with unused shvi’is produce.)

A SHMITTAH ROAST IN AMERICA

We can now explore the first question I mentioned:

1a: May one use shmittah wine to season a roast?

Although one improves the roast by adding the wine, the wine itself is ruined. Thus, some poskim prohibit using the wine in this way, whereas others permit it, since this is a normal use for wine (see commentaries to Yerushalmi, Terumos 11:1).

1b: What does our American housewife do with her shmittah wine-flavored roast?

If one uses shmittah food as an ingredient, one must treat everything that absorbs its taste according to the laws of kedushas shvi’is (see Mishnah Shvi’is 7:7). Therefore, one who used shmittah potatoes in cholent or shmittah onions or bay leaves in soup must treat the entire cholent or soup according to shvi’is rules. One may not actively waste this food, nor may one feed any of it to animals, until the food is spoiled to the point that people would not eat it.

Therefore, our housewife who added shmittah wine to her roast must now consider the entire roast, even the gravy and vegetables cooked with it, to have kedushas shvi’is. One serves the roast in the regular way. As mentioned above, the small scrapings left on an adult’s plate may be washed off; but the larger amounts left behind by children should not be disposed of in the garbage, nor should the leftovers in the pot or on the platter.

Although one may not dispose of the leftover kedushas shvi’is roast in the garbage, it is unclear whether one may remove these leftovers from the refrigerator in order to hasten their decay, even to place them in a shmittah bin (see Chazon Ish, Shvi’is 14:10). However, if one removed leftover roast to serve, one is not required to return the leftovers to the refrigerator. Instead, one may simply place the leftovers somewhere until they have spoiled. To avoid the malodor that this may cause, one may place them in a plastic bag until they decay and then dispose of them.

SEFICHIN

At this point, we should address the second question I mentioned:

“I noticed a sign in shul that the some fruits and vegetables in the local supermarket are from Israel and must be treated appropriately. Someone told me that the vegetables are prohibited, because they are sefichin. What does that mean?”

The Torah permits the use of any produce that grew during shmittah by itself, without anyone working the field. However, an unfortunate fact is that, even in the days of Chazal, one could find Jews who deceitfully ignored shmittah laws. One practice of unscrupulous farmers was to plant grain or vegetables, and then market them as produce that grew on its own. To make certain that these farmers did not benefit from their misdeeds, Chazal forbade all grains and vegetables, even those that grew by themselves, a prohibition called sefichin, or plants that sprouted. Sefichin are treated as non-kosher food and forbidden to eat, even requiring one to kasher the equipment if they were cooked!

Chazal made several exceptions to this rule, including that produce of a non-Jew’s field is not prohibited as sefichin.

Since Shmittah fruits and vegetables may be sold only to someone who will properly observe the laws, and, also, there is a prohibition of shipping this produce outside Eretz Yisroel, the growers of the Shmittah produce being sold in an American grocery presumably ignored the prohibition of Shmittah. There is also the possibility that they relied on heter mechirah, a topic that I dealt with extensively in a different article.

As a practical matter, few contemporary chareidi poskim permit heter mechirah, and, even among non-chareidi authorities, support for its use is waning. Thus, if the heter mechirah is considered a charade and not a valid sale, the grain and vegetables growing in a heter mechirah field are prohibited as sefichin.

WHY NOT FRUIT?

Chazal included in the prohibition of sefichin only crops that could be planted and yield a harvest in one year. They did not extend the prohibition of sefichin to tree fruits and other perennial crops, such as bananas and strawberries, because there was less incentive for a cheating farmer. Although trees definitely thrive when pruned and cared for, they will produce, even if left unattended for a year. Thus, the farmer has less incentive to tend his trees.

“GUARDED PRODUCE”

I mentioned above that a farmer must allow others free access to help themselves to any produce that grows on his trees and fields during shmittah. What is the halacha if a farmer treats this produce as his own and refuses access to it during shmittah?

The Rishonim dispute whether this will make the fruit forbidden. Some late poskim permit the fruit, because they rule that the forbidden working of an orchard or treating it as private property does not prohibit its fruit (see Shu”t Igros Moshe, Orach Chayim 1:186). Others rule that one should prohibit “guarded fruit.”

What about our carrot muffins? If we remember our original story, the company had unwittingly purchased heter mechirah carrots. The hechsher required the company to return all unopened boxes of carrots to the supplier and to find an alternative source. However, by the time the problem was discovered, muffin mix using these carrots had already been produced and distributed, bearing the hechsher’s kashrus symbol. The hechsher referred the shaylah to its posek, asking whether they were required to recall the product from the stores as non-kosher, or whether it was sufficient to advertise that an error had occurred, advising the customer to ask his individual rav for halachic guidance. The posek asked permitted them to follow the latter procedure.

For someone living in Eretz Yisroel, observing shmittah properly involves assuming much halachic responsibility, education and often great commitment, since shmittah-permitted produce is often many times more expensive than its alternative. Those living in chutz la’aretz should be aware of the halachos of shvi’is and identify with this demonstration that the Ribbono Shel Olam created the world in seven days, and that the seventh year is holy.

 

How Will I Buy My Esrog This Year?

esrogimAs the shmittah year comes to a close, and the laws prohibiting agricultural work phase out, several halachos will still apply to the special produce that grew during shmittah. One issue that affects people living in chutz la’aretz is the status of the esrogim arriving for Sukkos. Before delving into some of the controversial issues involved, let us first discuss the basics:

The Torah imbues shmittah produce with a special sanctity called kedushas shvi’is. As a result produce that grew during shmittah:

  1. IS OWNERLESS — HEFKER

The owner of a field or orchard must treat whatever grows on his land as ownerless, allowing others to pick, without charge, as much as their families can use. Furthermore, one may not harvest the produce in order to sell it commercially (Tosefta, Shvi’is 5:7).

  1. CANNOT BE SOLD COMMERCIALLY

One may not sell shmittah produce in a business manner (Rambam, Hil. Shmittah 6:1). For example, shmittah produce may not be sold by weight or measure (Mishnah Shvi’is 8:3), nor sold in a regular store (Yerushalmi Shvi’is 7:1).

  1. SANCTIFIES ITS EXCHANGE – TOFESES DAMAV

If one trades or sells shmittah produce, whatever one receives in exchange becomes imbued with kedushas shvi’is and must be treated with all the laws mentioned above. Even so, the original produce always maintains its kedushas shvi’is (Sukkah 40b).

  1. MAY BE PROHIBITED IF THE HALACHOS ARE VIOLATED –– SHAMUR VENEEVAD

According to many (and perhaps most) Rishonim, if a farmer did not allow people to pick from his fields, the shmittah produce that grew there becomes prohibited (see, for example, Raavad and Baal HaMaor to Sukkah 39a). Similarly, many authorities prohibit consuming produce that was tended in a way that violated the agricultural laws of shmittah (Ramban, Yevamos 122a).

  1. MUST EVENTUALLY BE “ELIMINATED” — BIUR

One has the right to consume shmittah produce as long as it is still available in the field. Once no more produce remains in the field, special laws called biur shvi’is apply, which I will explain later.

  1. MAY NOT BE EXPORTED

One may not export shmittah produce outside Eretz Yisroel (Mishnah Shvi’is 6:5). I will discuss shortly this issue’s impact on the export of shmittah esrogim.

  1. ARE ONLY FOR JEWISH CONSUMPTION

Shmittah produce is meant for Jewish consumption; one may not give or sell kedushas shvi’is produce to a gentile, although one may have the gentile join one’s meal (Rambam, Hil. Shmittah 5:13 as explained by Mahari Korkos).

  1. ARE FOR FOOD AND NOT FOR WASTE

One may not ruin shmittah produce (Gemara Pesachim 52b). What types of “ruining” did the Torah prohibit? One may not cook foods that are usually eaten raw, such as cucumbers or oranges, nor may one eat raw any produce that is usually cooked, such as potatoes (Yerushalmi, Shvi’is 8:2; Rambam, Hil. Shvi’is 5:3). Similarly, one may feed shmittah produce to animals only if it is unfit for human consumption.

The prohibition is only to actively ruin shmittah produce; one is not required to prevent it from spoiling. For example, when one finishes using a shmittah esrog on Hoshanah Rabbah, one may not chop up the esrog so that it will rot faster, but one is not required to wrap it up so that it does not dry out. Once shmittah produce has become useless, there is no mitzvah to treat it in any special way, and it may be thrown away.

According to accepted opinion, there is no obligation to eat shmittah food – rather, the Torah permits eating it, if the rules are followed (Chazon Ish, Hil. Shvi’is 14:10).

BUYING A SHMITTAH ESROG

Since shmittah esrogim must be treated as ownerless, the grower may not harvest them for commercial sale or market them in the usual fashion. Furthermore, if someone sells the esrog, he must treat the money received in exchange with all the laws of shmittah sanctity. To remove this sanctity, he must use this money to purchase food that he will now eat according to the laws of shmittah food. When he does this, the kedusha on the money transfers onto the food.

This leads us to an interesting question. If no one may profit from the sale of a shmittah esrog, why are tens of thousands of esrogim being sold? Are people violating shmittah when they sell these esrogim?

WELCOME TO OTZAR BEIS DIN!

The answer is that when using an otzar beis din in the correct way, the esrogim are distributed and not sold. What is an otzar beis din?

In an article published here towards the beginning of shmittah year, I detailed the halachic and historical background of the otzar beis din. Allow me to briefly review the concept and then explain how this permits the distribution of esrogim.

WHAT IS AN OTZAR BEIS DIN?

Literally, otzar beis din means “a storehouse operated by beis din.”

As mentioned above, the owner of an orchard may not harvest his produce for sale, and he must allow individuals to help themselves to what their family may use. But, what about people who live far from the orchard and find it difficult to pick fruit for themselves? How will most people ever utilize their right to pick shmittah fruit?

Enter the otzar beis din to help out! Beis din, representing the public, hires people who know how to carefully pick and clean the esrogim, evaluate their kashrus, purchase the wrapping materials and boxes, and pack and ship the esrogim to the consumer. The beis din represents the public interest, supervises the hiring of necessary labor, the rental of equipment, and the delivery of the esrogim to a convenient distribution center near the consumer.

Obviously, no one expects the pickers, sorters, truckers, and other laborers to work as unpaid volunteers; they, also, are entitled to earn a living. Similarly, the managers who coordinate this project are also entitled to an appropriate wage for their efforts. Furthermore, there is no reason why beis din cannot hire the owner of the orchard to supervise this massive project, paying him a wage appropriate to his significant skills in knowing how to manage this operation.

WHO PAYS FOR OTZAR BEIS DIN SERVICES?

The otzar beis din divides these costs among the consumers. The charges to the esrog user should reflect the actual expenses incurred in bringing the esrogim to their consumers, and may not include any charge or profit for the finished product (Minchas Shelomoh, Shvi’is 9:8 pg. 250). Thus, otzar beis din products should cost less than regular retail prices for the same items. (See Yerushalmi 8:3 that shvi’is produce should be less expensive than regular produce.)

All the halachos of shmittah apply to otzar beis din produce, which therefore may not be sold for profit. Acquiring from an otzar beis din is not really “purchasing,” since you are not buying the fruit from anyone, but are receiving a distribution – your payment is exclusively for necessary operating costs. For this reason, if the otzar beis din is run correctly, the money paid for its products does not acquire kedushas shvi’is, because it is paid not in exchange for the shmittah fruit, but as compensation for expenses (Minchas Shelomoh, Shvi’is 9:8 pg. 250).

Although many otzarei batei din allow sellers to grade esrogim according to quality, a particularly beautiful esrog cannot command a price any higher than any other esrog in its general category, and the price of the entire category must reflect only the actual costs incurred. Selling an esrog at a higher price than this violates the rules of the otzar beis din and the laws of shmittah. In addition, the money received would be in exchange for a purchase and consequently have kedushas shvi’is that requires appropriate care. As a result, negotiating a particularly high price for a specifically beautiful esrog is certainly forbidden.

BIUR – ELIMINATION

At this point in our discussion, we need to explain the concept of biur shvi’is. One requirement of shmittah produce is that when it is no longer available in the field, it becomes subject to biur. The word biur literally means elimination, as in biur chometz, which refers to the destruction of chometz performed each year before Pesach. Biur shvi’is means that one removes shmittah produce from one’s possession when the biur date for this species arrives.

Although the Rishonim dispute exactly what biur shvi’is entails, we rule that it means declaring ownerless (hefker) any shmittah produce in one’s possession (Ramban, Vayikra 25:7; cf. Rashi, Pesachim 52b s.v. mishum and Rambam, Hil. Shmittah 7:3 for alternative approaches.) For example, let us say that I picked shmittah apricots and canned them as jam. When no more apricots are available in the field, I must take the remaining jam and declare it hefker in the presence of three people (Yerushalmi, Shvi’is 9:5). I may do this in front of three close friends who will probably not take the jam after my declaration; it is sufficient that they have the right to take possession. If someone fails to perform biur, the shmittah produce becomes prohibited for consumption.

Produce still in the possession of an otzar beis din at the time of biur is exempt from being declared hefker. The reason is that this product is still without an owner – the otzar beis din is a distribution center, not an owner. However, produce originally distributed through an otzar beis din and now in private possession must be declared hefker. We will discuss shortly how this impacts on our esrogim.

HAVLA’AH

At this point, we must discuss a very misunderstood concept called havla’ah, which means that one includes the price of one item with another. The Gemara (Sukkah 39a) describes using havla’ah to “purchase” an esrog that has shmittah sanctity without the money received becoming sanctified with kedushas shvi’is. For example, Reuven wants to buy an esrog from Shimon; however, Shimon does not want the money he receives to have kedushas shvi’is. Can he avoid this?

Yes, through a strategy Chazal called havla’ah, in which Shimon simultaneously sells a different item to Reuven that has no kedushas shvi’is, such as a lulav. The lulav is sold at a high price, and the esrog accompanies it as a gift. Although everyone realizes that this is a ruse to avoid imbuing the sales money with kedushas shvi’is, the ruse works and the money does not have kedushas shvi’is.

HAVLA’AH PROBLEMS UNIQUE TO OTZAR BEIS DIN

However, it is inconsistent to purchase an esrog with havla’ah and acquire it through otzar beis din at the same time. Otzar beis din means that I am not purchasing the esrog, but receiving it from those who picked it for me. I am paying, not for the fruit, which is rightfully mine, but for the expenses, just as I compensate a friend who ran an errand on my behalf. Since the money is for expenses and not for the fruit, how can the otzar beis din agent charge extra for the esrog by saying he is selling an expensive lulav? The moment I pay an unwarranted sum for the esrog, I have nullified his role as agent, and instead, he is engaging in commercial trade in violation of shmittah. Thus, most instances of havla’ah cannot be utilized when someone is selling shmittah produce through an otzar beis din (Maadanei Aretz 7:2; note to Minchas Shelomoh, Shvi’is 9:8 pg. 251; see also Sfas Emes to Sukkah 39a).

Although I am aware of esrogim dealers who sell expensive otzar beis din esrogim through havla’ah, I know of no halachically acceptable method to do this. Hopefully, some authority holds that one may use otzar beis din in this way. However, Rav Shelomoh Zalman Auerbach, z”tl, and Rav Elyashiv, z”tl, both prohibited this practice.

EXPORT

Having explained many of the issues of shmittah esrogim, we are still left with one major subject to discuss. At the beginning of this article, I mentioned that the Mishnah prohibits exporting shmittah produce to chutz la’aretz (Mishnah Shvi’is 6:5). If that is true, how are so many thousands of Israeli-grown esrogim arriving in chutz la’aretz? Are the shippers all violating shmittah?

This question has been the subject of much halachic debate within the last century. I am aware of several innovative approaches to permit the export.

A very prominent Eretz Yisroel talmid chacham, Rav Yehoshua Tzvi Michal Shapiro, passed away in the early twentieth century leaving behind extensive notes and correspondence on a wide range of halachic areas. These materials were edited and published in 5680 (1920) by the renowned gadol, Rav Yaakov Moshe Charlap, under the title Tzitz HaKodesh. In his responsum addressing the export of esrogim to chutz la’aretz, Rav Shapiro suggests three creative heterim to permit exporting esrogim to chutz la’aretz. The first approach assumes that Chazal prohibited exporting shmittah produce out of concern that the fruit would be eaten in chutz la’aretz, since shmittah produce may be eaten only in Eretz Yisroel. Indeed, there are early authorities, most notably the Raavad, who rule that shmittah produce may be eaten only in Eretz Yisroel, even though this position is by no means universally accepted. (Raavad commentary to Sifra, Behar 1:9; responsum of Rav Avraham Eizen published in Beis HaRidbaz 5:18; cf. Ridbaz, ad locum, who contends that this approach is not accepted halacha.)

Assuming that Chazal prohibited exporting shmittah produce to chutz la’aretz out of concern that it might be eaten there, the Tzitz HaKodesh reasons that it is permitted to export esrogim, since they are not usually eaten (Tzitz HaKodesh Volume 1 #15:4).

The Tzitz HaKodesh suggests two other ingenious methods whereby one could legitimately export esrogim, including a suggestion that a gentile ship them. The other option contends that one may ship shmittah produce to chutz la’aretz to fulfill the mitzvah, if one stipulates that they are returned to Eretz Yisroel afterwards. (By the way, several shmittos ago, the esrog I purchased contained such instructions inside the box, obviously based on this psak.)

Another authority suggests a different rationale to permit exporting shmittah esrogim. He cites sources that the prohibition to export shmittah produce is because the biur of all shmittah produce must be in Eretz Yisroel, and Chazal were concerned that the fruit may remain in chutz la’aretz until the time for biur arrives. He then contends that the law of biur does not apply to esrogim, since some esrogim always remain on the tree. Since esrogim are always available in the field, the law of biur does not apply to esrogim, and the prohibition to export is similarly inapplicable (Beis Ridbaz 5:18; however, cf. Minchas Shelomoh, Shvi’is 6:5).

IMPORTING ESROGIM FROM ERETZ YISROEL

Rav Moshe Feinstein accepted none of these rationales to permit export of shmittah esrogim. Nevertheless, he ruled that the importer does not violate halacha by ordering shmittah esrogim from Israel, since the exporter is acting on the basis of a lenient psak (Shu”t Igros Moshe, Orach Chayim 1:186).

WHAT DO I DO WITH MY ESROG?

For the most part, those living in North America are concerned less about whether they may import esrogim from Eretz Yisroel, and more about what to do with such an esrog after Sukkos. The esrog keeps its kedushas shvi’is until it becomes inedible, and one may not actively facilitate its decay process nor ruin it in any way.

According to one approach suggested by the Tzitz HaKodesh, one may be required to ship the esrog back to Eretz Yisroel after Sukkos. However, most authorities do not require this.

Assuming that return shipping is not required, one still may not destroy the esrog after Sukkos, but one is not required to preserve it. Therefore, the simplest solution is to remember not to wrap up the esrog on Hoshanah Rabbah. Without wrapping or refrigeration, the esrog will soon dry out and become inedible. At that point, one may dispose of it.

When we look around the shul on Sukkos and see everyone holding his own set of arba’ah minim, we should sing praises to Hashem for helping us fulfill these mitzvos so easily in comparison to earlier times, when it was common for an entire community to share one set. At the same time, we should remember the modern farmer in Israel who observed shmittah with true mesiras nefesh, thereby attesting to the message of shmittah — that the Ribbono Shel Olam created the world in six days and rested on the seventh.

 

Semicha and Sanhedrin Controversies of the 16th to 21st Centuries, Part II

This is the continuation of the article I sent out last week. Although the news story for which this was written is no longer a hot topic, the halachic information is still germane and relates directly to Parshas Ki Seitzei.

In part I of this article, we explained that the Sanhedrin, which is also called the Beis Din Hagadol, is the final authority on all matters of halacha and that the interpretation by its 71 members of Torah shebe’al peh is both exclusive and authoritative. Any halachic issue that is questionable and disputed by a lower beis din is referred to the Beis Din Hagadol for a binding decision. We also noted that the Sanhedrin fulfills several vital political and administrative roles, including the appointment of the Jewish King and the judges who serve on the courts of the tribes (the shevatim) and the cities. Furthermore, many other halachos require the participation or agreement of the Sanhedrin, including a decision to wage war, or any attempt to expand the boundaries of the Beis HaMikdash or of the city of Yerushalayim (Rambam, Hilchos Sanhedrin 5:1). Thus, the Sanhedrin is not only the supreme authority in matters of halacha, but it is also, quite literally, the “power behind the throne,” “the power behind the courts,” – and, at the same time, the court of final appeal. It has the final say in all matters, both worldly and spiritual. The Sanhedrin is also in charge of supervising the Jewish calendar through the appointment of a specially-designated committee. (In the absence of a Sanhedrin or Beis Din Hagadol, Hillel Hanasi established a calendar over 1500 years ago, so that the calendar can continue to exist, even during the interim that there is no Sanhedrin.

We also noted that among the many technical requirements that all members of the Sanhedrin must meet, there is a basic one: they must all be superior talmidei chachamim and G-d fearing individuals. In addition, all members of the Sanhedrin and, indeed, of all the lower courts must also receive the special semicha that Moshe bestowed upon Yehoshua, authorizing him to rule on all areas of Jewish law. We noted that there are several levels of semicha, and that all members of the Sanhedrin are required to have the highest level of semicha –one that authorizes its recipient to rule on capital and corporal cases (chayavei misas beis din and malkus) and to judge kenasos, penalties that the Torah invoked. This semicha can only be given to someone who is an expert in all areas of halacha.

We also studied the question as to whether the semicha can be reintroduced by us, and the controversy that developed in the 16th century about this matter. We noted that the conclusion was that the attempt to reintroduce the semicha then was not accepted on halachic grounds, for several different reasons. One of those reasons  was that the person receiving semicha must be a talmid chacham with the scholarship to rule on any subject in Torah.

How, then, will the Sanhedrin be reestablished?

The Radbaz, gadol hador of that generation, concluded either that Eliyahu HaNavi will issue semicha to others, as the harbinger of Moshiach’s arrival; or, that descendents of shevet Reuven may reappear who have semicha. A third option he suggests is that Moshiach, himself, will grant semicha and thus create a Beis Din Hagadol.

At this point, we continue our discussion:

SEARCHING FOR SEMICHA IN THE 1830’S

In the 1830’s, a leading disciple of the Vilna Gaon who had settled in Yerushalayim, Rav Yisroel of Shklov, made another attempt to restart semicha. Rav Yisroel was interested in organizing a Sanhedrin, but he accepted the ruling of the Maharalbach and the Radbaz that we cannot create semicha by ourselves. Instead, he decided to utilize the suggestion of the Radbaz of receiving semicha from the tribes of Reuven. Rav Yisroel charted out where he thought the Bnei Reuven were probably located, and sent a certain Rav Baruch, as his emissary, to find them (see Sefer Halikutim, in the “Shabsei Frankel” edition of Rambam, Hilchos Sanhedrin 4:11). Unfortunately, Rav Baruch did not succeed in locating the shevet of Reuven, and the plan came to naught.

It should be noted that Rav Yisroel raised the following question: How could the Bnei Reuven have kept the semicha alive, considering the fact that they were outside Eretz Yisroel and the semicha can be granted only in Eretz Yisroel? He answered that since the Bnei Reuven had been distant from the rest of Klal Yisroel before the decision that semicha can be only in Eretz Yisroel had been accepted, there is no reason to assume that they accepted this ruling, and they were probably still issuing semicha!! It is odd that Rav Yisroel assumed that although we paskin that semicha can be given and received only in Eretz Yisroel, he still held that a semicha granted outside Eretz Yisroel is, nonetheless, valid.

Rav Yisroel’s vain search to locate a musmach was an attempt to reintroduce the Sanhedrin, a far more ambitious plan than the Mahari Beirav had considered. Apparently, Rav Yisroel understood from the Gemara (Eruvin 43b) that the Sanhedrin must exist before Eliyahu can appear, a position that almost all poskim reject, as we pointed out above.

NAPOLEON’S SANHEDRIN

In 5567 (1807), Napoleon Bonaparte, Emperor of France, decreed the opening of what he called “The Sanhedrin,” consisting of 71 Jewish leaders, mostly Rabbonim, but including many communal leaders, many not religious.

This group had nothing to do with being a Sanhedrin other than that Napoleon had given them this name. Napoleon presented this group with a list of 12 inquiries to answer, all of which questioned whether the Jews were loyal to the French Empire and its laws, and about the interactions between Jews and non-Jewish Frenchmen. Of course, the “Sanhedrin” had to be very careful how they answered Napoleon’s questions to make sure that they were not guilty of treason. This Sanhedrin met many times in the course of about a year and then disbanded. It was never called into session again.

THE TWENTY-FIRST CENTURY

Those who call their modern organization the “Sanhedrin” base themselves on the Mahari Beirav’s opinion that we can recreate semicha today, based on the acceptance of most of the gedolei Yisroel. On this basis, they claim to have created semicha for one of the well-known poskim in Eretz Yisroel, who subsequently ordained a few others, who have ordained yet others, until they now claim several hundred “musmachim.

I spoke to one of the “dayanim” of the “Sanhedrin” about the procedure used to appoint their musmachim. He told me that the organization mailed letters to every shul and settlement in Israel requesting appointment of a certain well-respected Rav as musmach. They then counted the votes of those who responded and approved of their appointment. Since most of those who responded approved of the appointment, they have ruled that this Rav is now a musmach whose semicha qualifies people to serve on the Sanhedrin! To quote this “dayan,” “those who chose not to respond do not count. We have a majority of those who responded!?!”

Obviously, this system carries absolutely no halachic validity according to any opinion.

When I spoke to the “dayan,” he asked me if I was interested in becoming one of their musmachim. He told me that he would send me the information necessary for an appointment with their committee that approves musmachim. Consequently, I received a letter inviting me to the next meeting of their “Sanhedrin,” and a note that they had asked one of their members about me and, upon that basis, they were preparing a semicha with which to present me at the next meeting of the “Sanhedrin”!! I noted above that the Radbaz ruled that the person receiving semicha must be a talmid chacham with the scholarship to rule on any subject in Torah. Since I do not qualify for semicha on that basis, I am curious what criteria they are applying to determine a minimum standard for semicha. Unfortunately, I think I know the answer.

The group behind this “Sanhedrin” often implies that several different gedolim are behind their activities. This is highly misleading, since these gedolim refuse to be identified with this group’s activities. Any Jewish organization built upon falsehood is doomed to failure, even if it is well intentioned, since the Torah is Toras Emes.

When I spoke to the “dayan,” I told him that I had some questions about the halachic basis for their procedures. He answered that they prefer to reply to questions in writing, and he requested that I send my letters via e-mail. He promised that they would answer all my inquiries quickly. In a subsequent conversation, he told me that he had received my initial inquiry. I sent him two respectful letters, one asking several halachic questions about their procedures, the second asking for verification that some of the gedolim they have quoted have, indeed, endorsed their position. Although I sent each of these requests to them twice, I never received any reply from them.

Moreover, there are some serious issues that this “Sanhedrin” is delegating to itself. If I might quote from a list of their activities:

“Among the many topics the Sanhedrin intends to address are the bridging of the divisions between various communities of Jewish exiles who have returned to Israel; the establishment of authentic techeilet, the biblical blue thread Jews are commanded to wear amongst the fringes attached to four-cornered garments; the definition of the measurement of the ‘amah’ (the biblical cubit); the determination of the exact point of human death, so as to deal with the Jewish ethics of euthanasia; and the issue of agunot — women whose husbands refuse to grant them a divorce.”

I would like to point out that all these issues have been or are being dealt with by Klal Yisroel’s gedolei haposkim. (In other articles, I explained why most gedolei haposkim rejected the suggested sources of the techeiles dye.)

Recently, the group has gotten involved in several really serious issues. Apparently, they are exploring the location of the mizbeiach, the possibility of offering korban Pesach, and of appointing a king from the descendants of Dovid Hamelech. One of their meetings was, apparently, conducted on the Har Habayis itself! (Please note that most poskim prohibit ascending the Har Habayis.) The discussion about bringing korbanos is a well-trodden halachic discourse and, here also, all gedolei poskim have ruled that we cannot offer korbanos now. (Again, I refer the reader to an article on this subject that is available on this site.)

Based on what I have seen about this “Sanhedrin,” I pose the following questions to the reader:

Are the members of this “Sanhedrin” qualified to make decisions that affect Klal Yisroel? Are they qualified to make any halachic decisions at all? Is this not an attempt at arrogating halachic decisions from the Gedolei Yisroel and the Gedolei Haposkim? Are these the people who should be determining Klal Yisroel’s agenda? Doesn’t this organization cheapen the kedusha that the word Sanhedrin implies? Isn’t this organization an insult to anyone with Torah sensitivities?

The Gedolei Yisroel could organize a Sanhedrin today, if they considered it halachically acceptable. Clearly, they are of the opinion that the halachic foundation for such a move does not exist or, alternatively, that Klal Yisroel will not benefit from its creation.

We should all daven with more kavanah when reciting the bracha Hoshiva shofeteinu kivarishonah, “Return our judges like the ones we had originally,” as a result of Teka bishofar gadol licheiruseinu, “Blow the Great Shofar that will free us.”

Semicha and Sanhedrin Controversies of the 16th to 21st Centuries, Part I

This article was written a number of years ago. Although the news story for which it was written is no longer a hot topic, the halachic background included is still very germane and relates directly to Parshas Shoftim.

The Anglo-Jewish press has been carrying occasional coverage of a group in Eretz Yisroel that calls itself “The Sanhedrin,” a group of 71 rabbis convened in Teverya claiming that they had the semicha necessary to create a Sanhedrin as specified by the Rambam. The group chose Teverya because the original Sanhedrin last met there. The “semicha” that they received was based on a semicha granted to one well-known talmid chacham who had received semicha from “many prominent rabbis.” In the opinion of those organizing this “Sanhedrin,” this talmid chacham is now considered to have received semicha as handed down from Moshe Rabbeinu, and, therefore, he is now qualified to give this level of semicha to the others. The goal of the group is to have a body of rabbis who convene and issue rulings on pressing issues relevant to Klal Yisroel. The issues that the group plans to discuss and rule upon are: how to unify Jewish practice across the spectrum, to determine and reestablish halachic techeiles, to define the measure of an amah, to find ways to deal with agunos, to determine precisely the point of human death, so as to deal with issues of euthanasia, and to find a way to offer the Korban Pesach once again.

This group’s claims have generated some serious halachic issues pertaining to what the poskim have written about how the semicha and the Sanhedrin will be reestablished.

This article will be devoted to an explanation of the various halachic underpinnings of the Sanhedrin, including:

What are the roles and responsibilities of the Sanhedrin?

What exactly is semicha, and why is it such a central factor in the creation of the Sanhedrin?

What attempts have been made throughout history to reconvene a Sanhedrin and reestablish semicha?

Does this new organization fulfill its title?

WHAT IS THE SANHEDRIN?

The Sanhedrin, also called the Beis Din Hagadol, is the final authority on all matters of halacha. Their interpretation of Torah shebe’al peh is authoritative.

Any halachic issue that is questionable and disputed by the lower batei din is referred to the Beis din Hagadol for a binding decision.

The Sanhedrin also fulfills several vital political and administrative roles. It appoints the Jewish King, as well as the judges who serve on the courts of the tribes (the shevatim) and the cities. Each shevet and each city was required to have a beis din of 23 that the Sanhedrin appoints. Thus, the Sanhedrin is not only the supreme halachic authority but it is also, quite literally, the “power behind the throne,” “the power behind the courts,” and, at the same time, the court of final appeal. It has the final say in all matters, both worldly and spiritual.

Many other halachos require the participation or agreement of the Sanhedrin, including a decision to wage war and expanding the boundaries of the Beis HaMikdash or of Yerushalayim (Rambam, Hilchos Sanhedrin 5:1). (We are permitted to eat many holy items, including certain korbanos and maaser sheini, only in halachic Yerushalayim, which has nothing to do with its current municipal boundaries. Expanding the city requires a special procedure that includes participation of the Sanhedrin.)

In addition, several types of adjudication require the participation of the Sanhedrin, including the laws of eglah arufah, and prosecuting a false prophet, a city that went astray (ir hanidachas), a sotah, and a zakein mamrei, an elder who ruled against the Torah shebe’al peh (Rambam, Hilchos Sanhedrin 5:1).

The Sanhedrin is also in charge of supervising the Jewish calendar, through the appointment of a specially-designated committee. (In the absence of a Sanhedrin or Beis din Hagadol, Hillel Hanasi established a calendar over 1500 years ago, so that the calendar can continue to exist even during the interim that there is no Sanhedrin.)

WHERE AND WHEN DOES THE SANHEDRIN MEET?

The Sanhedrin was open daily in its main headquarters, called the lishkas hagazis, inside the Beis HaMikdash. When they are involved in litigation, the entire Sanhedrin is present. When not in session, there must still always be 23 members of the Sanhedrin in the lishkah.

WHO QUALIFIES TO BE IN THE SANHEDRIN?

There are many technical requirements that all members must meet, but as a basic requirement, they must all be superior talmidei chachamim and yirei shamayim (G-d fearing individuals). In addition, all members of the Sanhedrin, and indeed, of all the lower courts, must also receive the special semicha that Moshe bestowed upon Yehoshua, authorizing him to rule on all areas of Jewish law.

DOESN’T EVERY RABBI HAVE SEMICHA?

There are several levels of semicha. The most basic semicha, called yoreh yoreh, authorizes the recipient to rule on matters of kashrus and similar areas. A more advanced level of semicha, called yodin yodin, authorizes its recipient to rule as a dayan on financial matters. A higher level, no longer obtainable today, is called yatir bechoros and authorizes its recipient to rule on whether a first-born animal is blemished and no longer appropriate to offer as a korban (see Sanhedrin 5a).

There was also a qualitative different type of semicha that could be obtained from the time of Moshe Rabbeinu until the time of the Gemara. This semicha authorized the recipient to rule on capital and corporal cases (chayavei misas beis din and malkus) and to judge kenasos, penalties that the Torah mandates. Only a beis din consisting exclusively of dayanim ordained with this semicha may judge whether a person receives lashes or the death penalty for his actions.

In earlier days, each city and shevet had its own beis din of 23 judges, all of whom were possessors of the highest level of semicha. In addition, all 71 members of the Sanhedrin must have this form of semicha.

HOW MANY DAYANIM GIVE OUT SEMICHA?

The highest level of semicha may be granted by a single judge who is, himself, a musmach of this level, although the grantor must be accompanied by two other people, who need not be musmachim themselves. He may grant semicha to as many qualified people as he chooses, The Gemara records that Dovid HaMelech (himself an expert judge and tremendous talmid chacham) once granted 30,000 semichos in one day!! However, semicha given by anyone is valid only when it is granted to someone who is an expert in all areas of halacha. Semicha given to a person who is not expert in all areas of halacha is not valid (Meiri, Sanhedrin 14a).

This highest level of semicha must be issued within Eretz Yisroel. Thus, even if a talmid chacham is highly qualified, he may not receive semicha unless the grantor of the semicha and the recipient are both in Eretz Yisroel (Sanhedrin 14a). For this reason, most of the Amora’im, the great talmidei chachamim of the times of the Gemara, never received this semicha, because they lived in Bavel and not in Eretz Yisroel.

THE STORY OF RAV YEHUDA BEN BAVA

The Gemara (Sanhedrin 13b) tells us the following fascinating story: The Roman Empire once decreed that issuing semicha was a serious crime, punishable by death for both the grantor and the recipient. Furthermore, they ruled that the town in which the semicha was issued would be destroyed, and the areas near it would be razed.

Rabbi Yehudah ben Bava realized that he was one of the last musmachim (recipients of this special semicha) alive after the execution of Rabbi Akiva, and that if he failed to grant semicha to some young scholars, the semicha would terminate. He therefore endangered himself and granted semicha to five surviving disciples of Rabbi Akiva: Rabbi Meir (the author of the original draft of the Mishnah), Rabbi Shimon (ben Yochai, author of the Zohar), Rabbi Yehudah (ben Ila’i), Rabbi Yosi (ben Chalafta) and Rabbi Elazar ben Shamua – basically, to an entire generation of Torah leadership. In order not to endanger anyone else, Rabbi Yehuda ben Bava brought them to a place that was midway between two major cities and was between two mountains. Thus, for the Romans to fulfill their decree, they would need to level two mountains.

Rabbi Yehudah ben Bava succeeded in this mission, although he paid for it with his life. Because of his supreme sacrifice, the semicha continued among the Jewish people for several more generations.

With the increased persecution of the Jews by the Romans, the Jewish population of Eretz Yisroel decreased considerably, and with time, ordination through this semicha ended. Thus, no one received the semicha that qualifies someone to judge capital, corporal, or kenasos cases, and this aspect of halachic life came to an end.

CAN SEMICHA BE REINSTITUTED?

The Rambam writes: “It appears to me that if all the chachamim in Eretz Yisroel agree to appoint dayanim and grant them semicha, they have the law of musmachim and they can judge penalty cases and are authorized to grant semicha to others… If someone received semicha from someone who already has semicha, then he does not require authorization from all of them – he may judge penalty cases for everyone, since he received semicha from beis din. However, this matter requires a final decision” (Rambam, Hilchos Sanhedrin 4:11).

Thus, the Rambam suggested a method whereby the semicha can be re-created. However, several issues need to be clarified before this project can be implemented:

  1. Did the Rambam rule this as a final decision or was it merely conjecture? What did he mean when he wrote in his closing words, “However, this matter requires a final decision”? Did he mean that he was uncertain about his suggestion, or was he referring to a different aspect of his comments?
  2. Assuming that the Rambam meant to rule definitely that semicha can be re-instituted, did he mean, literally, that this process requires all of the chachamim in Eretz Yisroel to agree, or does a majority suffice? Must the rabbonim involved all meet in one place, or is it sufficient if they are aware of the process and approve?
  3. Is the Rambam’s opinion on this subject universally held? And if not, do we rule like him?

THE 16th CENTURY CONTROVERSY- REINTRODUCING SEMICHA

After the Spanish expulsion, many Jews remained in Spain, practicing their Judaism in secret, while publicly appearing to be Christians. Thousands of these secret Jews eventually escaped to areas where they could return to the religion of their fathers, yet they were haunted by the sins that they had committed in their previous lives. Many were concerned that they would never escape the specter of their more serious aveiros, some of which carried the punishment of kareis. Although they had become true baalei tshuvah, they lived in fear of their ultimate day of judgment, when they would have to give a reckoning for their actions and face the serious consequences.

THE SOLUTION

The Mahari Beirav, Rav of Tzefas in the early sixteenth century, came up with an original solution to the problem. He proposed the creation of batei din that would carry out the punishment of malkos, lashes, which releases someone from the punishment of kareis (Mishnah Makos 23a).

There was one serious problem with this proposal. In order to create batei din that can exact these punishments, one must have dayanim who have received the special semicha that can be traced to Moshe Rabbeinu. Since this semicha had terminated over a thousand years before, the Mahari Beirav needed a different approach.

TZEFAS, 5298 (1538)

In 5298 (1538), based on the writings of the Rambam (Peirush Hamishnayos, Sanhedrin 1:3; Hilchos Sanhedrin 4:11), 25 gedolim of Tzefas, at the time the largest Torah community in Eretz Yisroel, granted semicha to the Mahari Beirav. He then ordained four people with the new semicha, including Rav Yosef Karo, who had already written his monumental works Kesef Mishneh and Beis Yosef, and later authored the Shulchan Aruch, and Rav Moshe deTrani, the author of several major halachic works, including Beis Elokim, Kiryas Sefer, and Shu’t Mabit. Mahari Beirav also sent a semicha to the Rav of Yerushalayim, Rav Levi ibn Chaviv, known as the Maharalbach, who he assumed would be delighted to receive such a wonderful gift!

The Maharalbach was not happy with the gift and returned it. He took strong issue with their conferring semicha, for the following reasons:

  1. The Rambam’s closing words, “This matter requires a final decision,” show that he was not fully decided on this halacha, and therefore it cannot be relied upon.
  2. The Ramban (Sefer Hamitzvos, Aseh 153) disagrees with the Rambam, contending that semicha can not be reinstituted until Moshiach arrives. Thus, since the Rambam was uncertain about this halacha, and the Ramban was certain that there is no such thing, the halacha follows the Ramban.
  3. Even if we assume that the Rambam meant his ruling to be definitive, the Tzefas rabbonim had not fulfilled the procedure correctly, since all the gedolim of Eretz Yisroel must be together, in one synod. (This opinion is actually mentioned earlier by the Meiri, Sanhedrin 14a.)

Furthermore, Maharalbach is insistent that all the scholars must be involved in the active debate, and that all must agree. Furthermore, he argued that even if someone contends that a majority of gedolim is sufficient, the minority must be aware of the debate and participate in it. He further contended that creating such a synod now would not help either, since once the Tzefas rabbonim had ordained the Mahari Beirav, they now have a bias in their ruling (noge’ah bedin), which invalidates their opinion on the subject.

Maharalbach proved his opinion that the Rambam’s suggestion was not accepted as normative halacha from the fact that there had been numerous opportunities for gedolei Yisroel to create semicha , and yet, they refrained. Maharalbach concludes that semicha will not exist again until the arrival of Moshiach.

WHAT ABOUT THE CRYPTO-JEWS?

As for the baalei teshuvah that would be left without release from their kareis, the Maharalbach pointed out that if they performed sincere teshuvah, they would be forgiven for their sins, no matter how severe they were. Although it is possible that they may experience some suffering in this world for these aveiros despite their teshuvah, they would receive no punishment for their aveiros in the next world (Makos 13b).

On the other hand, the Maharalbach pointed out that he did not understand how semicha could accomplish what Mahari Beirav wanted, anyway, since beis din cannot punish someone for violating the Torah, unless several requirements are met, including:

The sinner must receive a warning immediately prior to his violating the commandment telling him that he is sinning, explaining to him that what he is planning to do is wrong, and what punishment he will receive if he sins. The sinner must acknowledge that he heard and understood the warning and then performed the sin anyway. Furthermore, beis din does not punish a sinner unless two adult male Jews witness the entire procedure and then testify in front of beis din. (Of course, consequently, this means that cases in which Beis Din punishes for violating a Torah mitzvah are quite rare.) Clearly, none of these crypto-Jews had received warning prior to performing the aveiros, and therefore they are not required to suffer malkus in beis din. Thus, how would these baalei teshuvah receive the malkus they desire, even if dayanim musmachim exist?

RESPONSE FROM TZEFAS

The Mahari Beirav responded to the Maharalbach’s arguments. As far as the punishment of malkus is concerned, the Mahari Beirav held that if someone voluntarily asks for malkus for his sin in the presence of an authorized beis din, the punishment is carried out, even though there were no warnings and no witnesses. Thus, the creation of a beis din of musmachim facilitates the atonement of these people.

As far as semicha is concerned, Mahari Beirav did not accept the Maharalbach’s criticism that his semicha program was invalid. Mahari Beirav explained that the Rambam’s ruling is definitive, not theoretical or suggestive, and he questions whether the Ramban disputes this opinion. Even if the Ramban does question it, the Mahari Beirav contends that the halacha follows the Rambam. Furthermore, the Mahari Beirav contends that a simple majority of gedolim living in Eretz Yisroel is sufficient to create semicha, since the halacha in all other cases of jurisprudence is that we follow the majority. Thus, since all the gedolim of Tzefas, who were a majority of the gedolim in Eretz Yisroel at the time, had appointed him as dayan, the semicha could be renewed on this basis. In addition, the Mahari Beirav contends that correspondence with the other gedolei Yisroel is a sufficient method to determine whether a majority favor renewing semicha, and that it is not necessary for all the gedolim to attend a meeting together for this purpose.

A lengthy correspondence ensued between the Maharalbach and the rabbonim of Tzefas, which is referred to as the Kuntros Hasemicha, and is appended to the end of the Shu’t Maharalbach.

Incidentally, the dispute between Maharalbach and Mahari Beirav as to whether the gedolim can reinstitute semicha dates back to the Rishonim. The Meiri (to Sanhedrin 14a) rules that semicha can be reintroduced by having all the gedolei Yisroel of Eretz Yisroel gather together and appoint someone to be a dayan. However, he rules that the gedolim must meet together in one group for this ruling, which precludes the Mahari Beirav’s method. The Rashba (Bava Kamma 36b) also cites Rambam’s opinion, although he rules the opposite, that renewal of semicha must await the arrival of Moshiach, following the opinion of the Ramban, as explained by Maharalbach. In addition, the Ritva and the Nemukei Yosef (both at end of Yevamos) state that semicha must await the arrival of the era of Moshiach.

Evidence to support the Mahari Beirav’s opinion, if not his method, can be drawn from the Gemara (Eruvin 43b), that states that Eliyahu will declare his arrival as the harbinger of Moshiach by coming to the Beis Din Hagadol. This Gemara implies that the Beis din Hagadol will precede the arrival of Eliyahu, and not the other way around (see Maharatz Chayes ad loc.). However, the Ritva and the Nemukei Yosef appear to hold that there will be no Sanhedrin until Moshiach comes.

THE RADBAZ GETS INVOLVED

Both sides appealed to the Radbaz, the acknowledged gadol hador, who lived in Egypt at the time, for a ruling. (The Radbaz later moved to Eretz Yisroel, but at the time of this dispute, he was outside of Eretz Yisroel and, therefore, had not been involved in the initial debate and discussion.)

The Radbaz ruled like the Maharalbach that the semicha was invalid, believing that the Rambam, himself, was not certain that semicha could be reinstituted by agreement of the Chachamim in Eretz Yisroel. Furthermore, universal acceptance of the semicha would be necessary, even according to Rambam’s approach. In addition, Radbaz felt that the person receiving semicha must be a talmid chacham with the scholarship to rule on any subject in Torah. He did not believe that his generation had any talmidei chachomim in this league.

HOW, THEN, WILL THE SANHEDRIN BE REESTABLISHED?

The Radbaz does discuss an issue: if we cannot create a new semicha, how, then, will we have a semicha in the future? As mentioned above, semicha is necessary to create a Sanhedrin, and the Sanhedrin is necessary to appoint the Jewish King and judges, and for many other community activities. Radbaz presents three methods whereby semicha can be re-established:

  1. Eliyahu HaNavi, who is a musmach (see Rambam, Introduction to Mishneh Torah), will issue semicha to others, when he arrives as the harbinger of Moshiach’s arrival. (Some poskim raise a question with this approach, pointing out that the Gemara [Eruvin 43b] reports that Eliyahu will announce to the Sanhedrin that his arrival is the harbinger of Moshiach. However, how could this happen if Eliyahu must first create the beis din? [Maharatz Chayes ad loc.] Many answers can be given to this question, but will have to be left for discussion another time.)
  2. Descendants of shevet Reuven who have semicha may reappear. Just because we are unaware of anyone with semicha, does not mean that members of other shevatim, who have been separated from us since before the time of the Churban, do not have semicha. (This approach creates a question. If semicha can only be given in Eretz Yisroel, how could members of these shevatim receive semicha, when we know that they were exiled from Eretz Yisroel? See below for an answer to this question.)
  3. Moshiach himself will grant semicha and thus create a Beis din Hagadol. Radbaz does not explain where Moshiach himself gets his authorization to grant semicha.

As noted above, Radbaz contends that no one in our generation qualifies in learning and yiras Shamayim to qualify. Specifically, he states that only someone who is qualified to paskin on any area of the Torah qualifies for this special semicha.

RESULTS OF THE TZEFAS SEMICHA

The Mahari Beirav passed away three years after the semicha project began. Although Rav Yosef Karo had received this semicha and actually ordained Rav Moshe Alshich (author of the Alshich commentary to Tanach), by all indications he never utilized the semicha in any other way. Nowhere does he refer to a renewal of semicha, and, furthermore, numerous places in Shulchan Aruch would be written differently, had its author assumed that a beis din of semuchim existed today. In all of these places, Rav Yosef Karo assumes that no beis din exists today that is authorized to rule on the laws of penalties and punishments. This is even more intriguing in light of the fact that, in his commentary Beis Yosef (Choshen Mishpat 295), he records as definitive halacha the Rambam’s opinion that semicha can be renewed.

Although Rav Moshe Alshich ordained Rav Chayim Vital (Birkei Yosef, Choshen Mishpat 1:7), who was renowned as the primary disciple of the Ari, z”l, the semicha trail appears to end at this point. There is no indication of anyone continuing the semicha project after this time. From all indications, we can assume that the psak of the Maharalbach and Radbaz, that we should not introduce semicha on our own, was accepted. Thus, the issue was left for the next two hundred years. We will continue our discussion on this topic in part II of this article.

The Mitzvah of Duchening (Birchas Kohanim)

In Parshas Naso, the Torah teaches about the beautiful mitzvah of Birchas Kohanim, wherein the kohanim are commanded to bless the people of Israel. This mitzvah is usually referred to by Ashkenazic Jews as “duchening” and by Sefardic Jews as Birchat Kohanim, or occasionally as Nesiyat Kapayim, which refers to the raising of hands that the kohanim do in order to recite the blessings.

Why Is This Mitzvah Called Duchening?

Duchen is the Aramaic word for the platform that is in front of the Aron Kodesh. The duchen exists to remind us of the ulam, the antechamber that stood in front of the Kodesh and the Kodshei HaKodoshim, the holy chambers in the Beis HaMikdash. The Kodshei HaKodoshim was entered on only one day of the year, on Yom Kippur, and then only by the Kohen Gadol. The Kodesh was entered a few times daily, but only to perform the mitzvos of the Menorah, the Golden Mizbayach (altar), and the Shulchan (the Holy Table that held the Lechem HaPanim). Before entering the Kodesh, one ascended into the Ulam as a sign of respect, so as not to enter the Kodesh immediately.

Similarly, in our shuls the Aron Kodesh represents the Kodesh, since we are permitted to open it and to remove the Sifrei Torah when we need to. But, before entering the Kodesh, one ascends the duchen, in this case, also, to show respect by approaching the Aron Kodesh after a preliminary stage.

The duchen also serves other functions, one of which is that the kohanim stand upon it when they recite the blessings of Birchas Kohanim. For this reason, this mitzvah is called duchening (duchenen in Yiddish). In the absence of a duchen, or if there are more kohanim in the shul than there is room on the duchen, the kohanimduchen” while standing on the floor in the front of the shul.

Basics of Duchening

There is a basic order to the duchening that occurs during the repetition of the Shemoneh Esrai. When the chazan completes the brachah of modim and the congregation answers “amen” to his brocha, someone (either the chazan or a member of the congregation, depending on minhag) calls out “kohanim” to inform the kohanim that it is time for them to begin the brachah. After the kohanim recite the brachah on the mitzvah, the chazan then reads each word of the Birchas Kohanim that is recorded in the Torah (Bamidbar 6:24-26) for the kohanim to recite, and the kohanim respond. The congregation responds “amen” after each of the three brochos. After the last brachah of Birchas Kohanim is completed by the kohanim, the chazan returns to the repetition of the Shemoneh Esrai by reciting the brachahsim shalom“.

The Gemara and poskim teach that at each of these stages, one must be careful not to recite one’s part before the previous step has been completed. Thus, the person who calls out “kohanim” must be careful not to do so before the congregation has finished answering “amen” to the chazan’s brachah; the kohanim should be careful not to recite the words of the brachah before the chazan has completed saying the word “kohanim”; the chazan may not call out “yevarechecha” before the congregation has completed saying “amen” to the brachah of the kohanim, etc. It is important to be mindful of these halachos and allow each stage to be completed before beginning the next. Unfortunately, even well-learned people are sometimes not sufficiently careful and patient to wait until it is time for their part to be recited.

Wearing Shoes During Duchening

A kohen may not duchen while wearing shoes. The Gemara teaches that this was one of the nine takkanos that were instituted by Rabbi Yochanan ben Zakai (Sotah 40a). Although there would seem to be an obvious association with the halacha that the kohanim were barefoot when they performed the service in the Beis HaMikdash, the actual reason for this takkanah is unrelated. Rabbi Yochanan ben Zakai was concerned that a kohen’s shoelace would tear while he was on the way to the duchen and, while stopping to retie his shoelace, he would miss the duchening. However, people who saw that he missed the duchening would not realize what happened. They might start a rumor that he did not duchen because he is not a valid kohen! For this reason, Chazal instituted that every kohen simply removes his shoes before duchening.

What if the Chazan is a Kohen?

The mishnah states that when there is only one kohen in shul, and he is the chazan, then he may (and should) duchen (Berachos 34a). In this instance, the kohen will remove his shoes and wash his hands prior to beginning repetition of the Shemoneh Esrai. There is a dispute among poskim whether a kohen may duchen when he is the chazan and there are other kohanim who will be duchening. The Shulchan Aruch rules that he should not duchen under these circumstances, because of a concern that he will become confused where he is up to in the davening and have difficulty resuming his role as chazan (Orach Chayim 128:20). Chazal instituted this prohibition even when we are certain that the chazan will not become confused, such as today, when he has a siddur in front of him (Mishnah Berurah 128:72).

However, the Pri Chodosh rules that he may duchen, and that the concern referred to by the Shulchan Aruch was only when the chazan might become confused (such as when he does not have a siddur to daven from). In most communities in Eretz Yisrael, the custom is to follow the Pri Chodosh’s ruling allowing a kohen who is the chazan to duchen. However, in chutz la’aretz the practice is to follow the Shulchan Aruch, and the chazan does not duchen (unless he is the only kohen).

In a situation where the chazan is the only kohen and there is a platform (the “duchen”) in front of the aron kodesh, there is a very interesting halacha that results. Since the duchening should take place on the platform, the kohen walks up to the duchen in the middle of his repetition of the Shemoneh Esrai. After completing the duchening, he returns to his place as chazan and completes the repetition of the Shemoneh Esrai.

The Minyan Disappeared

What do you do if you started davening with a minyan, but in the middle of davening, some men left, leaving you with less than a minyan? Can you still duchen?

If the minyan started the duchening with ten men or more, and then some men left in the middle of the duchening, they should complete the duchening (Biur Halachah 128:1 s.v. bipachus).

What Happens if a Kohen Does Not Want to Duchen?

A kohen who does not want to duchen should stand outside the shul from before the time that the word “kohanim” is called out, until the duchening is completed.

The Days that We Duchen

The prevalent custom among Sefardim and other Edot Hamizrach is to duchen every day. There are many Ashkenazic poskim who contend that Ashkenazim should also duchen every day. However, the standard practice in chutz la’aretz is that Ashkenazim duchen only on Yomim Tovim. In most of Eretz Yisroel, the prevalent practice is that Ashkenazim duchen every day. However, in Tzfas and much of the Galil, the custom is that the kohanim duchen only on Shabbos and Yom Tov.

Why do Ashkenazim duchen in Eretz Yisrael every day, and in chutz la’aretz only on Yom Tov?

Several reasons are cited to explain this practice. Rama explains that a person can confer blessing only when he is fully happy. Unfortunately, except for the Yomim Tovim, the kohanim are distracted from true happiness by the difficulties involved in obtaining basic daily needs. However, on Yomim Tovim, the kohanim are in a mood of celebration. Thus, they forget their difficulties and can bless people with a complete heart (Rama 128:44; cf. Be’er Heiteiv ad loc.). Thus, only on Yom Tov do the kohanim duchen.

In Eretz Yisroel, the practice is to duchen daily, because the Ashkenazim there followed the ruling of the Vilna Gaon. He contended that Ashkenazim everywhere should duchen every day.

Why do the kohanim in Tzfas duchen only on Shabbos and Yom Tov?

The reason for this custom is unclear. I was once told in the name of Rav Kaplan, the Rav of Tzfas for many decades, that since Tzfas had many tzoros over the years, including many serious earthquakes and frequent attacks by bandits,  the people living there did not have true simcha. However, they were able to achieve enough simcha on Shabbos and Yom Tov to be able to duchen. This reason does not explain why the other communities in the Galil duchen only on Shabbos and Yom Tov.

It should be noted that the Sefardim in Tzfas duchen every day, not only on Shabbos.

Placement of Shoes

As I mentioned before, Chazal instituted that a kohen should remove his shoes before duchening. Unfortunately, some kohanim leave their shoes lying around in the front of the shul when they go up to duchen. This practice is incorrect. The kohanim are required to place their shoes under the benches or in some other inconspicuous place when they go up to duchen. It shows a lack of respect to leave the shoes lying about (Mishnah Berurah 128:15)

Washing Hands

Prior to duchening, there is a requirement that the kohanim wash their hands. In some shuls, the Kohanim wash their hands in the front of the shul before they go up to duchen. What is the reason for this practice?

This custom has a source in Rishonim and Poskim and should definitely be encouraged. Tosafos (Sotah 39a s.v. kol) rules that one should wash one’s hands relatively near the duchen, whereas washing further away and then walking to the duchen constitutes an interruption, a hefsek, similar to talking between washing netilas yadayim and making hamotzi  on eating bread. (His actual ruling is that one should wash one’s hands within twenty-two amos of the duchen, which is a distance of less than forty feet.) Thus, according to Tosafos, we are required to place a sink within that distance of the duchen where the kohanim stand to duchen. The Magen Avrohom rules according to this Tosafos and adds that since the kohanim wash their hands before Retzei, the chazan should recite the brachah of Retzei speedily. In his opinion, the time that transpires after the kohen washes his hands should be less time than it takes to walk twenty-two amos (128:9). Thus, Retzei must be recited in less time than it takes to walk twenty-two amos. The Biur Halachah adds that the kohanim should not converse between the washing of their hands and the duchening, because this, also, constitutes a hefsek.

Duchening and Dreams

A person who had a dream that requires interpretation and does know whether the dream bodes well should recite a prayer at the time of the duchening (Berachos 55b; Shulchan Aruch, Orach Chayim 130:1). It should be noted that the text of the prayer quoted by the Gemara is different from that quoted in the majority of siddurim. The Gemara cites the following text for this prayer:

“Master of the World, I am yours and my dreams are yours. I dreamed a dream that I do not understand its meaning — whether it is something I have dreamt about myself or it is something that my friends dreamt about me or whether it is something that I dreamt about them. If these dreams are indeed good, strengthen them like the dreams of Yosef. However, if the dreams need to be healed, heal them as Moshe healed the bitters waters of Marah, as Miriam was healed of her tzaraas, as Chizkiyahu was healed of his illness and as the waters of Yericho were healed by Elisha. Just as You changed the curse of Bilaam to a blessing, so, too, change all my dreams for the good.” According to the opinion of the Vilna Gaon, this prayer should be recited at the end of all three blessings, rather than reciting the “Yehi Ratzon” that is printed in most siddurim (Mishnah Berurah 130:5).

One should complete the prayer at the moment that the congregation answers Amen to the blessings of Birchas Kohanim. This prayer can be recited not only when one is uncertain of the interpretation of the dream, but even when one knows that the dream bodes evil (Mishnah Berurah 130:4).

Among Ashkenazim in chutz la’aretz, where the practice is to duchen only on Yom Tov, the custom is to recite this prayer every time one hears the duchening, because there is a likelihood that since the last Yom Tov one had a dream that requires interpretation (Mishnah Berurah 130:1). This prayer is not recited on Shabbos, unless one had a bad dream that night (Mishnah Berurah 130:4). In Eretz Yisrael, where the custom is to duchen daily, the practice among Ashkenazim is to recite the prayer for dreams at the last of the three berachos of the duchening at musaf on Yom Tov, when it does not fall on a Shabbos. The custom is that the kohanim chant the last word of the brachah on these Yom Tov days to allow people sufficient time to recite this prayer.

In all places, the custom among Sefardim is not to recite the prayer unless the person had such a dream.

As a kohen, myself, I find duchening to be the most beautiful of mitzvos. We are, indeed, so fortunate to have a commandment to bless our fellow Jews, the children of Our Creator. The nusach of the brachah is also worth noting. “Levarach es amo Yisrael b’ahava” — to bless His nation Israel with love. The blessings of a kohen must flow from a heart full of love for the Jews that he is privileged to bless.